This opinion is subject
to editorial correction before final publication.

Judge GIERKE delivered the opinion of the Court.

A general court-martial composed of officer
members convicted Appellant, contrary to his pleas, of unpremeditated murder
and assault upon a child under 16 years of age, in violation of Articles
118 and 128, Uniform Code of Military Justice [hereinafter UCMJ] 10 U.S.C.
§§ 918, 928 (2000), respectively. The adjudged and approved sentence
provides for a dishonorable discharge, confinement for life, forfeiture
of all pay and allowances, and reduction to the lowest enlisted grade.
The Court of Criminal Appeals affirmed the findings and sentence. United
States v. Diaz, 56 M.J. 795 (A. Ct. Crim. App. 2002).

WHETHER THE MILITARY JUDGE ERRED IN ALLOWING
GOVERNMENT EXPERTS TO TESTIFY REGARDING PRIOR INSTANCES OF ALLEGED MISCONDUCT.

II.

WHETHER THE MILITARY JUDGE ERRED IN DENYING
THE DEFENSE MOTION FOR A MISTRIAL FOLLOWING THE IMPROPER TESTIMONY OF TWO
GOVERNMENT WITNESSES.

III.

WHETHER THE MILITARY JUDGE ERRED IN FAILING
TO SUPPRESS APPELLANT’S STATEMENTS, OBTAINED BY CPT TREMAINE IN VIOLATION
OF APPELLANT’S RIGHT UNDER ARTICLE 31, UCMJ, SOLELY BECAUSE OF CPT TREMAINE’S
STATUS AS A MEDICAL DOCTOR.

IV.

WHETHER APPELLANT’S RIGHT TO DUE PROCESS
WAS VIOLATED WHEN THE MILITARY JUDGE ERRONEOUSLY FAILED TO SUPPRESS APPELLANT’S
STATEMENTS TO MS. AMLIN WHERE (1) SUCH STATEMENTS WERE NOT PRECEDED BY
ARTICLE 31 WARNINGS WHICH WERE REQUIRED TO BE GIVEN SINCE MS. AMLIN WAS
ACTING AS AN INSTRUMENTALITY OF THE MILITARY; (2) ARMY REGULATION 608-18
REQUIRES THAT SOCIAL WORKERS PROVIDE ARTICLE 31 WARNINGS PRIOR TO QUESTIONING
A SOLDIER ABOUT DOMESTIC ABUSE AND SUCH REGULATION WAS INTENDED TO CONFER
A SUBSTANTIAL RIGHT ON THE ACCUSED; AND (3) WHERE SUCH STATEMENTS WERE
UNLAWFULLY INDUCED IN VIOLATION OF ARTICLE 31(d) AND THE FIFTH AMENDMENT
PROHIBITION AGAINST COMPULSORY SELF-INCRIMINATION THROUGH THE REMOVAL OF
APPELLANT’S DAUGHTER FROM HIS CUSTODY BY CHILD PROTECTIVE SERVICES TWO
YEARS BEFORE AND BY THE THREAT THAT IF HE DID NOT CONFESS TO INTENTIONALLY
HARMING HIS DAUGHTER HIS PARENTAL RIGHTS WOULD BE PERMANENTLY TERMINATED.For the reasons set out below, we reverse the
decision of the Court of Criminal Appeals. Because we address Issues I
and II and hold for Appellant, we do not reach Issues III and IV.

I. BACKGROUND AND OVERVIEW

The charges against Appellant arose from a
series of severe injuries to Appellant’s two infant daughters, Nicole and
Jasmine, and the death of Nicole, all occurring between January 1993 and
July 1995. Each injury and Nicole’s death occurred while Appellant was
alone with the children. Appellant’s pretrial statements provided his only
explanation of the circumstances of the injuries and the death.

The prosecution attempted to prove its case
by establishing a "pattern of abuse by [A]ppellant against his infant daughters"
in both uncharged misconduct and the charged offenses. Diaz, 56
M.J. at 798. Appendix
A to this opinion is the prosecution’s "Chronology" used by the trial
counsel in the opening statement to demonstrate this alleged pattern of
abuse. The prosecution’s case was built on expert medical testimony, Appellant’s
admissions, and circumstantial evidence.

The defense objected to the admissibility of
the uncharged misconduct and Appellant’s admissions. The defense also filed
repeated motions in limine to limit the scope of expert medical testimony
thereby laying the foundation for each of the granted issues.

While each of these issues invites scrutiny,
we need not address all of them. A critical error at trial was the testimony
of a key prosecution medical expert who, contrary to the explicit ruling
of the military judge and the apparent direction of the trial counsel,
testified that Appellant killed his infant daughter. This error was compounded
by similar testimony by a social worker. The judge denied a defense motion
for a mistrial and attempted to cure the error by giving a curative instruction
to the members. It is the impact of this error on the entire proceeding
that is the focus of our decision. See ___ M.J. (2)(Granted
Issues I and II).

II. FACTS

A. Burns and other physical injuries to
Nicole Diaz

On November 25, 1992, Nicole was born to Appellant
and his wife. On January 23, 1993, Nicole was sick with a cold -- runny
nose and coughing. Following the direction of a nurse at the Fort Sill,
Oklahoma, clinic, Mrs. Diaz purchased a vaporizer. Mrs. Diaz read the directions
and set it up in the bedroom she and Appellant shared with the baby.

While Mrs. Diaz was in the shower, Appellant
placed Nicole over the vaporizer, which resulted in her being seriously
burned. The burn extended from her upper lip to her hairline on the entire
left side of her face. When Mrs. Diaz returned to the bedroom, Appellant
told her that he heard Nicole’s congestion and "that he’d put her over
the vaporizer to help her breathe, because it would help her breathe better."

Immediately, they took Nicole to Reynolds Army
Community Hospital in Fort Sill. Nicole was flown to Children’s Hospital
in Oklahoma City for treatment because she had second degree burns. While
treating Nicole, doctors at Children’s Hospital noted other injuries, including
bruises to her face and chest. X-rays revealed leg fractures and healing
posterior rib fractures, which appeared to be seven to fourteen days old.

Dr. Oscar Falcon was interning at Children’s
Hospital on the night Nicole was admitted for her burn. Dr. Falcon was
working in the plastic surgery department and examined Nicole. He saw the
burns on her face and bruises to her face and chest.

Dr. Falcon interviewed both Appellant and Mrs.
Diaz as part of the treatment. Appellant told Dr. Falcon that Nicole was
burned when "the steamer had fallen and hot water had splashed over [Nicole’s]
face." This was different from what Appellant previously told his wife.
At trial, Dr. Falcon testified that he was "99 percent sure" that Appellant
informed him of how Nicole was burned, as opposed to Mrs. Diaz, but conceded
that he was not "100 percent sure" because six years had elapsed between
his treatment of Nicole and his trial testimony.

These events triggered a report of suspicion
of abuse and neglect to Oklahoma social services department. The source
of the report is unclear from the record. Following up on this report,
Dr. John H. Stuemky, another doctor, examined Nicole. Dr. Stuemky was a
pediatrician with over thirty years of experience and wearing "many hats."
He was an associate professor of pediatrics at the University of Oklahoma
College of Medicine. He also served as Chief of the Pediatric Service,
Medical Director of the Emergency Department, and Chairman of the Child
Protection Committee for Children’s Hospital.

The Child Protection Committee is charged with
reviewing cases of suspected child abuse and neglect. This committee ensures
that appropriate information is collected in the hospital (the medical
findings, medical evaluations, social service reports) and is shared with
the appropriate investigatory agencies to evaluate suspicions of abuse
and neglect. As chairman of the committee, Dr. Stuemky evaluated Nicole.

Dr. Stuemky examined Nicole’s burns and reviewed
the medical records and X-rays. The X-rays showed three posterior rib fractures.
He made sure this information was passed on to Child Welfare and other
appropriate agencies.

Also at Children’s Hospital, Ms. Jo Ellen Copeland,
a social worker, questioned Appellant about possible abuse of Nicole. Appellant
admitted bruising Nicole and made conflicting statements about how she
suffered the burns. Appellant first told her that he held Nicole over the
vaporizer for three to four seconds, then changed it to between eight and
ten seconds. In this and two later interviews, Appellant provided three
different descriptions of how he held Nicole when she was burned.

Ms. Copeland asked that the police be contacted
and that Nicole be placed in protective custody. Nicole was placed in foster
care, where she remained in excellent health and thrived. On November 5,
1993, when Nicole was approximately one year old, she was returned to the
care and custody of her parents.

B. The death of Nicole Diaz

On February 11, 1994, Nicole died while she
was alone with Appellant. Nearly twelve hours after Nicole’s death, in
a videotaped interview with Lawton Oklahoma Police, Appellant said that
he and his wife again were in the bedroom of their apartment with Nicole
sleeping in her crib. Appellant removed Nicole from her crib because she
was coughing. He gave her some Dimetapp cough medicine and laid her on
his lap as he watched television in the living room.

After sitting with Nicole for about fifteen
minutes, he picked her up to put her back in her crib. At that time, he
noticed Nicole was limp and not breathing. Appellant claimed that Nicole
did not indicate any distress before she died. Appellant unsuccessfully
tried to resuscitate her. He then went to the bedroom and woke Mrs. Diaz.
After Mrs. Diaz telephoned a neighbor for advice, she and Appellant drove
Nicole to Reynolds Army Community Hospital, a short distance from their
apartment.

Mary Hyde, a registered nurse, was working
at Reynolds Army Hospital. At the reception desk, she observed Nicole,
who was "obviously unresponsive," lying limp across Mrs. Diaz’s arms. Mrs.
Diaz told Ms. Hyde that Nicole had been unresponsive for "[a] while." Nicole
was not breathing and she did not have a pulse. Her eyes were fixed and
dilated. There were no obstructions to her breathing. Ms. Hyde brought
Nicole to the trauma room, where she and a doctor unsuccessfully attempted
to resuscitate her.

Dr. Larry Balding, a Deputy Medical Examiner
in the Office of the Chief Medical Examiner in Oklahoma, performed an autopsy
on Nicole. The external examination of Nicole’s body revealed marks caused
by efforts to resuscitate her and a "hypopigmented area, meaning the skin
was a little darker" on Nicole’s "left cheek, right under the left eye."
There were also two small bruises to her scalp which were revealed by opening
the scalp. Dr. Balding concluded that these bruises occurred before Nicole’s
death.

Dr. Balding conducted an internal exam and
determined "as far as the internal organs go, there was no evidence of
injury or natural disease." There was "no evidence of intracranial hemorrhage
or infection" and the brain was "normally formed and show[ed] no evidence
of injury or disease." The toxicology screen showed small amounts of over-the-counter
cold medication and the presence of drugs used in resuscitation attempts
but "was essentially negative . . . in terms of having any relation to
causing the death."

While Dr. Balding "could find no cause of death,"
he noted the death as "suspicious." He "felt that the past history of unexplained
or inadequately explained injuries in this child is a significant condition."
The autopsy report listed Nicole’s cause of death as "unknown" and the
manner of death as "undetermined." Dr. Balding opined that the autopsy
findings were consistent with a death by suffocation. He also opined that
he could not rule out a Sudden Infant Death Syndrome (SIDS) type death
in this case. However, he did not use that diagnosis because "the injuries
[to Nicole] were enough to make [him] say that [he] couldn’t use that diagnosis."

C. Burns to Jasmine Diaz

In September 1994, several months after Nicole’s
death, Appellant was transferred to Hawaii. On January 5, 1995, Appellant’s
wife gave birth to a second daughter, Jasmine. On July 30, Appellant burned
Jasmine’s inner left thigh with the tip of a heated cigarette lighter.
This was the third reported incident of Appellant’s infant daughters suffering
harm when alone with him. Appellant claimed that he accidentally dropped
the lighter on Jasmine as he was trying to ignite a caterpillar or centipede
that had crawled into her crib.

The next day, Appellant’s wife presented Jasmine
to Dr. Elizabeth Abinsay, a pediatrician at St. Francis Medical Center-West
in Ewa Beach, Hawaii, who treated Jasmine for the burn to her left thigh
and also an ear infection. Dr. Abinsay evaluated the injury as a second
degree burn and provided follow-up treatment in both August and September.

D. Further investigation into possible child
abuse

After Jasmine was burned, Hawaii Child Protective
Services (CPS) initiated an evaluation of Jasmine for suspected child abuse
and neglect. In October 1995, Jasmine was admitted to the pediatric ward
at the Tripler Army Medical Center, Hawaii, where Captain Ladd Tremaine,
M.D., a board-certified pediatrician, evaluated Jasmine’s injuries to determine
if they were the result of accidental or non-accidental trauma. He examined
a "well healed scar on the left medial aspect of her upper thigh that had
essentially a branding pattern to it, potentially three different distinct
areas." Dr. Tremaine determined that the burns were "classic branding injur[ies]"
and were not incurred accidentally. As part of the evaluation, Dr. Tremaine
talked to Appellant. According to Dr. Tremaine,

Specialist Diaz reported that Jasmine had
been laid down to sleep that night, and when he went in to look in on her,
he noticed a centipede laying in her crib. He proceeded to obtain his lighter
and to chase the centipede around the bed and try to burn the centipede.
While he was doing that, he reported that he’d taken Jasmine into his wife’s
-- where his wife was, and his wife was in their bedroom. He went back,
got Jasmine, went to the living room, reported lighting a cigarette and
dropping the lighter on Jasmine’s leg.Following Dr. Tremaine’s evaluation, CPS removed
Jasmine from her parents’ custody.

At some unspecified time in 1996, Dr. Stuemky,
acting as a member of the Death Review Board of Oklahoma (Death Review
Board), became involved in the investigation of Nicole’s death. This is
an official state board (including physicians, nurses, and members of the
law enforcement community) that conducts a multi-disciplinary review of
every death of a child under the age of 18 "so no deaths would escape notice."
One function of the Death Review Board is to collect all agency and medical
reports and records so that local officials could have access to all information
relating to the death of a child.

Based on his review of this case, Dr. Stuemky
concluded that Nicole’s death was a homicide and Appellant was the perpetrator.
The Death Review Board contacted the military to make sure the investigators
in the Army were aware of Nicole’s previous injuries. In July 1997, Appellant
was transferred to Fort Drum, New York. Mrs. Diaz remained in Hawaii to
retain custody of Jasmine.

Appellant met four times with Ms. Reagan Amlin,
a clinical social worker in the Family Advocacy Program dealing with high-risk
families and clients at Fort Drum. In November and December 1997, Appellant
sought counseling as required by the CPS in order to be reunited with Mrs.
Diaz and Jasmine. The purpose of this therapy was for Appellant "to take
ownership of the abuse, to take responsibility for the abuse . . . ." It
was also to help Appellant understand "the enormity of the consequences
to the child." At the third session, following their discussion of Jasmine,
Ms. Amlin questioned Appellant about Nicole’s burn. According to Ms. Amlin:

[Appellant] indicated that . . . Mrs. Diaz
was asleep, it was late at night. Nicole had a cold, and he removed the
child from the crib and placed her face over a steamer. He indicated that
he was holding [Nicole] over the steamer with her face getting the steam.
He indicated that he was doing that to help her breathe . . . . He indicated
that [Nicole] made no movement at all, and he didn’t realize he was burning
the
child, and the child didn’t give any indication that [she] was being hurt.Appellant and Ms. Amlin next discussed Nicole’s
death. According to Ms. Amlin, Appellant informed herthat the night Nicole died, again, Mrs. Diaz
was sleeping. He’d taken Nicole from the crib, was sitting on the sofa
in the living room and, again, watching TV. He indicated . . . that when
he was ready to go to bed, he took the child to put her back in the crib,
and it was at that time that he discovered that the child had died.When she asked if he covered Nicole’s mouth and
nostrils to see what would happen, Appellant responded, "I just want to
be normal. I’m never going to get my family back. What will happen to me
if I go to jail[?]" At this time, Appellant gave Ms. Amlin a "rather strange
expression . . . it was rather like a smirk at first." After this session,
Ms. Amlin reported Appellant to U.S. Army Criminal Investigation Command
(CID).

During the fourth session, Ms. Amlin discussed
the nature of the injuries to the children and the patterns she was seeing.
Ms. Amlin told Appellant that she believed he killed Nicole. In response,
Appellant asked, "What will happen to me?" and indicated he was afraid
of going to jail. Appellant also indicated that "he did not know anything
until he put her into the bed, and then he realized that she was dead."

Ms. Amlin told Appellant, "I’m very convinced
that you killed Nicole." Appellant paused and then said, "You don’t know
the half of it." Appellant started questioning what was going to happen
to him and said, "I’m never going to get my family back." Ms. Amlin "felt
at that time that he started to realize that he’d said an awful lot, and
that it wasn’t going to be very helpful to him as far as [CPS] went." The
fourth session concluded with Appellant getting angry and stating that
he probably would not be back.

Based on these facts, on October 28, 1998,
two charges were preferred against Appellant -- murder of Nicole by suffocating
her and aggravated assault of Jasmine by burning her on the leg with a
cigarette lighter. These charges were referred to a general court-martial
on February 11, 1999.2

III. TRIAL DEVELOPMENTS RELATED TOAPPELLANT’S MOTION FOR A MISTRIAL

Expert medical testimony was the centerpiece
of both the prosecution and the defense. The prosecution’s case included
four medical experts who testified about both the charged offenses of abuse
and Appellant’s uncharged misconduct to establish a pattern of Appellant
abusing his daughters. The defense relied on testimony of two medical experts,
including one prosecution doctor whom the defense adopted as its own witness.
The defense also elicited testimony on cross-examination from two other
prosecution experts to challenge the prosecution’s theory. The defense
used expert testimony to bolster the Appellant’s explanation of accidental
burns to both girls. Expert testimony was also used to assert "crib death"
or SIDS as Nicole’s cause of death.

As Appellant did not testify at trial, both
parties relied on Appellant’s pretrial statements to provide his explanation
of the circumstances of the injuries and the death. In these pretrial statements,
Appellant persistently denied culpability in the death of Nicole. Also,
Appellant repeatedly admitted inadvertently and accidentally causing some
injury to the girls, although with sometimes conflicting explanations as
to the circumstances of the injuries. On one occasion, Appellant admitted
that he intentionally burned Jasmine, but the defense argued his admission
was to satisfy a social service agency requirement and to placate a social
worker who insisted that Appellant "accept the guilt of this" and get help
before Appellant could be eventually reunited with Jasmine.

Before this Court, Appellant asserts that the
testimony of two government witnesses, Ms. Amlin and Dr. Stuemky, should
have resulted in a mistrial. The specific testimony at issue is:

1. Ms. Amlin’s testimony that she
confronted Appellant with her personal belief that Appellant killed Nicole;

2. Dr. Stuemky’s testimony as to his conclusions
regarding Nicole’s death: "My conclusions were that this was a homicide
death – that this was a physical abuse death. And furthermore, I felt that
the perpetrator was the father."

A. Ms. Amlin’s testimony

Trial defense counsel moved in limine to prevent
Ms. Amlin from rendering any opinion about what she thought happened to
Nicole. The Government responded that it did not intend to elicit that
opinion. However, during her testimony, Ms. Amlin, in explaining the purpose
of the therapy, stated, "My job is to make sure very clearly that this
individual is guilty of what he’s being accused of." Later, Ms. Amlin indicated
that she confronted Appellant with her belief that he had killed Nicole.
The morning after Ms. Amlin testified, defense counsel expressed concern
that Ms. Amlin had testified as to her opinion that this was a homicide
when she stated, "I was convinced that he killed his daughter." The military
judge responded:

I’m going to give a limiting instruction
to the effect of whatever extent the [members] might come to that conclusion
by her testimony. That expression -- I remember one. It might’ve happened
more than that. It concerned me last night when I thought about it, because
I think the [members] could be misled into believing that her feeling was
that he did it. That expression was used in the course of her therapy to
talk to her client. That wasn’t her standing up here saying "I know he
did it." I’ll give a limiting instruction. I just wanted to clarify what
you were talking about.The military judge provided the following limiting
instruction concerning Ms. Amlin’s testimony:Members of the court, yesterday afternoon
you heard the testimony of Ms. Reagan Amlin. She testified about her four
sessions with Specialist Diaz. She testified that during one or more of
the sessions, she told Specialist Diaz that she either didn’t believe him,
or she confronted him with her thoughts that a crime was committed. You
members, as the voice of the community, have to decide the issues in this
case based upon the evidence that’s presented to you in court. Nobody can
tell you what happened. That’s your job and there are no shortcuts. There
is no witness that can tell you that a crime occurred; that’s your job
to determine that issue.So to the extent that you believe that Ms. Amlin
testified or implied that she believed that Specialist Diaz committed a
crime, committed a murder, committed an intentional burn, you may not consider
that as evidence that a crime occurred, because that’s your job. She used
that technique during her therapy to talk with the client. Do you understand
what I’m telling you here? You’ve got to make the decisions in this case,
and there’s nobody that can shortcut your job, although I’m sure that would
make it easier for you.The members indicated they understood the instruction.

B. Dr. Stuemky’s testimony

During a session pursuant to Article 39(a),
UCMJ, 10 U.S.C. § 839(a) (2000), defense counsel requested that Dr.
Stuemky be instructed not to mention uncharged misconduct beyond the Government’s
notice pursuant to Military Rule of Evidence 404(b) [hereinafter M.R.E.].
Defense counsel also sought to prevent Dr. Stuemky from stating that, in
his opinion, Nicole’s death was a homicide, and from stating whether the
Death Review Board had determined that it was child abuse or a homicide.

The military judge ruled that the doctor could
testify as an expert on the ultimate issue, that Nicole’s death was a homicide,
and that he could, with some limitations, testify generally about the nature
and function of the Death Review Board. In making his ruling the judge
stated:

Concerning the defense's objection to the
testimony of Dr. Stuemky as to the ultimate issue, I'm denying that motion
in limine. I find that his testimony, given the case to this point, is
material, and I believe it's probative. I believe he has the qualifications
to do it, from what I've been told by counsel. I believe that the information
he relied upon is information that would put him in a unique position to
be able to make that determination. Applying a[n] [M.R.E.] 403 balancing
test, I find that the probative value of the evidence is not substantially
outweighed by the likelihood of harm to the accused.Concerning his testimony about this [Death Review
Board], I'm going to allow him to testify about the [Death Review Board],
why it was created, what they do. I'm not going to let him talk about any
statistics concerning the [Death Review Board], as to how many times they're
correct, or how many times they're wrong, or anything like that. I will
allow him to testify about his background with the [Death Review Board],
how many investigations he's conducted and he's been involved in.

Concerning his testimony about the basis for
his determination, I believe he has a sufficient basis to form the opinion
that he's going to offer. I would tell the defense, however, that depending
on what their cross is, and how they attack him, you may open the door
as to his testifying about other evidence that he considered.

Government counsel represented to the court that
he would speak with Dr. Stuemky to "make it very clear to him as to what
[he] can or cannot testify to." Also, immediately before Dr. Stuemky’s
testimony, the judge gave the limiting instruction regarding the limitations
on Ms. Amlin’s testimony including the admonition, "There is no witness
that can tell you that a crime occurred."

Dr. Stuemky testified about his role in the
Child Protection Committee and his initial involvement with Nicole. He
explained that he had examined Nicole after she had been burned in January
1993. He first testified regarding her injuries. He told the panel that
he noticed the bruises on Nicole’s face and her fractured posterior ribs.
He explained the significance of these injuries in children and opined
that in small children the only cause of posterior rib fractures is child
abuse.

Next, Dr. Stuemky testified about his involvement
in the review of Nicole’s death by the Death Review Board. He explained
how the Death Review Board obtained and evaluated all the information relating
to Nicole’s early injuries including her burn and information relating
to her death. He testified in detail about SIDS. He explained that the
National Institutes of Health has defined SIDS as "a sudden, unexplained
death in an infant under 12 months of age in whom an autopsy has in fact
been performed, and no other cause or abnormalities are noted, and in whom
an adequate death scene investigation has been performed; and in whom all
associated records and that sort of thing are evaluated by the appropriate
agencies." He stated that "SIDS is primarily an event that occurs in infants
under 6 months of age. Ninety percent of SIDS deaths are under 6 months
of age . . . with the peak time of SIDS deaths between 2-4 months of age."

Interrupting the direct examination, the military
judge suggested taking a break. After a few more questions, trial counsel
acquiesced and requested a recess. Before the trial resumed and in an Article
39(a) session, the judge sua sponte revisited his ruling on the limits
of Dr. Stuemky’s testimony stating:

Earlier when I ruled about the ultimate conclusion,
I want to make clear that you understand what my ruling is. My ruling is
not that this witness can say, "Specialist Diaz murdered his daughter."
My ruling does allow you to ask whether the injuries are consistent with
a child abuse death; whether he has an opinion as to whether the injuries
were caused by child abuse; whether he has an opinion as to whether this
was a SIDS death, or inconsistent with a SIDS death. I'll let him do that.
I want to make sure you understand that my ruling did not say that he could
stand up there and point a finger at specialist Diaz and say, "He killed
his daughter." Do you understand my prior ruling?Assistant trial counsel responded that he understood
the ruling.

Dr. Stuemky then continued his testimony discussing
the factors the Death Review Board considers when evaluating a possible
SIDS death in general and the evidence relating to Nicole’s death in particular.
Dr. Stuemky stated, "Our concern is that something had to have caused this
death. And our concern is that it’s most likely consistent with suffocation."

At this point, the following occurred in assistant
trial counsel’s questioning of Dr. Stuemky:

Q. Did you come to any conclusion
with regardto your review of Nicole’s death and thereports?

A. Yeah, our Child Protective Team
---

Q. Did you come to any conclusions, sir,
byyour review?

A. Yes, I did.

Q. What were your conclusions?

A.
My conclusions were that this was a
homicide death -- this was a physical
abuse death. And furthermore, I felt
that the perpetrator was the father.

Your Honor, we move for a mistrial, that’s
strike three. That’s the third time we have moved in limine to exclude
testimony from a government witness that . . . blurted it out. Your Honor,
this is particularly disturbing because you specifically told [Government
counsel] that the witness could not say that. We move for an immediate
mistrial.Trial counsel responded.Yes, sir, we object to moving for a mistrial.
That was totally unexpected. I did, during the last recess, talk with Dr.
Stuemky and gave clear instructions on what he could and could not say,
and that was one of the matters that we spoke of. He could talk about exactly
as you had instructed – prior to the last break, I went out and reiterated
everything. I stated that he could say it was consistent with child abuse.
Again, Your Honor, I did not expect that. I did instruct that witness he
could not go there.Defense counsel responded, "Your Honor, everybody
expected it. We talked about it ahead of time. Everybody expected that.
That is highly prejudicial, Your Honor, and there’s no way to cure it."

After an eleven minute recess, the military
judge immediately provided the following curative instructions to the members:

Members of the court, early on in this trial
and during the case on several occasions, I’ve told you that you have to
decide the facts in this case, and you have to make a determination as
to whether a crime occurred. You have to make a determination as to the
believability or credibility of witnesses. And you have to follow my instructions
. . . . [Y]ou all assured me that you could do that.

I’m going to give you some instructions concerning
expert testimony. An expert – a person is allowed to testify as an expert
because his testimony may be helpful to you in coming to conclusions about
issues. The witness you’ve been hearing has been qualified as an expert
in a specific discipline because his knowledge, skill, experience, training
or education may assist you in understanding the evidence, or in determining
a fact in issue. But [t]he point is that you have to determine the fact
in issue. Do you understand that?

[Affirmative responses from the Members]

You are not required to accept the testimony
of an expert witness or give it any more or less weight than that of an
ordinary witness. But you should consider the expert’s experience and qualifications
in the specific area.

Expert witnesses are allowed to render opinions,
and those opinions are only allowed if they’re helpful to you, the fact
finder. But again, bear in mind that you have the ultimate determination
as to a conclusion about the issues in the case.

An expert cannot tell you that he thinks a
crime occurred, because that’s not helpful to you, because you have to
decide that. An expert witness cannot tell you that a witness is lying
or truthful, or he cannot even tell you that a crime occurred. Because
you have to decide that based on all the evidence, and only the evidence,
that’s been presented in the courtroom. Do you understand that?

[Affirmative responses from the Members]

To the extent that Dr. Stuemky opined that he
thought a crime occurred, and that a particular specific person committed
that crime, you cannot consider that, because that’s not helpful to you.
You have to make that decision. Do you understand that?

[Affirmative responses from the Members]

As I told you earlier this morning, there’s
nobody that can help you in that regard, because you have to make your
decision based on the evidence that’s presented to you here in court. Nobody
else has the unique situation of being present to hear all the evidence
in court. Do you understand what I’m telling you?

[Affirmative responses from the Members]

I’m telling you that you must disregard any
testimony about whether a crime occurred, or whether this soldier committed
a crime. Do you understand that?

[Affirmative responses from the Members]

And you can’t consider that for any reason during
your deliberations. Do you understand that?

[Affirmative responses from the Members]

I’ve gotten affirmative responses by every
member to this point.

You can consider evidence that certain – as
to an opinion about whether injuries were consistent with SIDS or not consistent
with SIDS, or whether injuries were consistent with a child abuse-type
death. But you cannot consider any testimony as to what this witness thought
as to who did it. Do you understand that?

The members indicated they would follow the instructions.
The judge then individually questioned each member as to whether they could
comply with the instructions. Every member indicated that they would follow
the instructions. At this point, without other comment or ruling, the judge
denied the defense motion for a mistrial.

However, this matter of Dr. Stuemky’s testimony
was not closed. While the members were deliberating, assistant defense
counsel made the following request of the judge:

I’d ask the court to recall Dr. Stuemky to
testify outside the presence of the members as to why he intentionally
disregarded a warning of the court and went beyond permissible testimony.
I thought about this last night, Your Honor, and there’s really only two
possibilities, either he wasn’t warned or he deliberately ignored that
warning. [Government Counsel] has represented to the court -- and I have
no reason to doubt it -- that he warned Dr. Stuemky. If Dr. Stuemky deliberately
ignored a warning of the court, the court ought to consider whether or
not he is in contempt. I think he ought to be recalled for this purpose
and he should be called to explain why he ignored explicit instructions
from the court.The military judge denied this request. After
deliberating for almost six hours, the members convicted Appellant of both
offenses.

IV. DISCUSSION

A. The error

The authority of expert testimony is well established.
Judge Wiss, speaking for this Court, identified the general parameters
in the evidentiary rules for the admissibility of expert testimony.

Liberal standards for admissibility of expert
testimony have been codified. [M.R.E.s] 702-05. Trial courts have seen,
therefore, a veritable explosion in use of expert testimony. Our Court
is concerned with the so-called "battle of the experts," which is a waste
of time, unnecessary, or confusing. [M.R.E.] 403 is the appropriate tool
for a military judge to use to handle this problem.[M.R.E.s] 702-705 and 403 operate to establish
a simple four-part test for admissibility of expert testimony: (1) Was
the witness "qualified to testify as an expert"? (2) Was the testimony
"within the limits of [the expert's] expertise"? (3) Was the "expert opinion
based on a sufficient factual basis to make it relevant"?, and (4) "Does
the danger of unfair prejudice created by the testimony outweigh its probative
value?"United States v. Banks, 36 M.J. 150, 160-61
(C.M.A. 1992)(citations and footnotes omitted). These rules reflect the
intuitive idea that experts are neither omnipotent nor omniscient.

An expert witness may not opine concerning
the guilt or innocence of the accused. SeeUnited States v. Birdsall,
47 M.J. 404, 409 (C.A.A.F. 1998); United States v. Cacy, 43 M.J.
214, 217 (C.A.A.F. 1995); United States v. Suarez, 35 M.J. 374,
376 (C.M.A. 1992); United States v. Meeks, 35 M.J. 64 (C.M.A. 1992).
The analysis to M.R.E. 704 expressly states, "The Rule does not permit
the witness to testify as to his or her opinion as to the guilt or innocence
of the accused . . . ." Manual for Courts-Martial, United States
(2002 ed.), Analysis of the Military Rules of Evidence A22-50.

The limits on expert opinion are rooted in
recognition that the expert lacks "specialized knowledge" to determine
if the victim or witness is telling the truth and respect for the member’s
exclusive function to weigh evidence and determine credibility. SeeBirdsall, 47 M.J. at 410. The position of this Court on these limitations
is consistent with well-established practice in federal civilian trial
courts. Id.

The admonition we have provided in the prosecution
of child sexual abuse cases is equally applicable to the use of all experts:
"When using the testimony of expert witnesses . . ., trial practitioners
‘must walk a fine line.’" Cacy, 43 M.J. at 217-18 (citation omitted).
Condemning impermissible expert opinion, this Court stated that such testimony
that opines that a crime has been committed and that a particular person
did it "crosses the line of proper medical testimony." Birdsall,
47 M.J. at 410 (error to opine that sons were "victims of incest by their
father").

It is clear to this Court, as it was to the
trial judge and the lower court, that the testimony of Dr. Stuemky was
improper when he opined that Nicole was the victim of a homicide and that
Appellant was the perpetrator. Diaz, 56 M.J. at 801. Dr. Stuemky
improperly testified as to his opinion of the guilt of Appellant. Likewise,
it is clear to this Court, as it was to the military judge when he delivered
his limiting instruction following Ms. Amlin’s testimony, that her testimony
was improper to the extent that it implied her belief that Appellant murdered
Nicole. This testimony usurped the panel’s exclusive function to weigh
evidence and determine guilt or innocence. Seeid.

B. The remedy

In light of this error, the decisional issue
before this Court is the remedy: Could the trial proceed with a curative
instruction addressing Dr. Stuemky’s testimony, or was either a full or
partial mistrial a necessary remedy? In this context, we focus on the more
egregious error resulting from Dr. Stuemky’s testimony, and we consider
the error as to Ms. Amlin’s testimony in terms of its impact on the prejudice
from Dr. Stuemky’s testimony.

Rule for Courts-Martial 915 (Mistrial) [hereinafter
R.C.M.], states in part:

(a) In general. The military judge
may, as a matter of discretion, declare a mistrial when such action is
manifestly necessary in the interest of justice because of circumstances
arising during the proceedings which cast substantial doubt upon the fairness
of the proceedings. A mistrial may be declared as to some or all charges,
and as to the entire proceedings or as to only the proceedings after findings.The discussion to R.C.M. 915(a) cautions that,The power to grant a mistrial should be used
with great caution, under urgent circumstances, and for plain and obvious
reasons. As examples, a mistrial may be appropriate when inadmissible matters
so prejudicial that a curative instruction would be inadequate are brought
to the attention of the members[.]In United States v. Dancy, 38 M.J. 1 (C.M.A.
1993), this Court recognized that a mistrial is an unusual and disfavored
remedy. It should be applied only as a last resort to protect the guarantee
for a fair trial. We explained:Declaration of a mistrial is a drastic remedy,
and such relief will be granted only to prevent manifest injustice against
the accused. It is appropriate only whenever circumstances arise that cast
substantial doubt upon the fairness or impartiality of the trial.Id. at 6 (citations and internal quotes
omitted).

A military judge has "considerable latitude
in determining when to grant a mistrial." United States v. Seward,
49 M.J. 369, 371 (C.A.A.F. 1998). This Court will not reverse the military
judge’s decision absent clear evidence of abuse of discretion. Dancy,
38 M.J. at 6; United States v. Rushatz, 31 M.J. 450 (C.M.A. 1990).
Our deference to the military judge’s decision on a mistrial is consistent
with other federal practice addressing this matter as reflected in this
statement by the First Circuit:

[T]he trial court has a superior point of
vantage, and . . . it is only rarely — and in extremely compelling circumstances
— that an appellate panel, informed by a cold record, will venture to reverse
a trial judge’s on-the-spot decision . . . . [A] mistrial is viewed as
a last resort, only to be implemented if the taint is ineradicable, that
is, only if the trial judge believes that the jury’s exposure to the evidence
is likely to prove beyond realistic hope of repair.United States v. Freedman, 208 F.3d 332,
339 (1st Cir. 2000) (citations and internal quotes omitted).

The challenge for both the trial judge and
the appellate court is to determine the prejudicial impact of an error.
In United States v. Pastor, Judge Cook focused on the difficulty
of this task stating,

Assessment of the probable impact of inadmissible
evidence upon the court members is always difficult. Sometimes an instruction
to disregard the inadmissible evidence is sufficient assurance that it
will not be weighed against the accused; other times the nature of the
evidence is such that it is not likely to be erased from the minds of the
court members. Each situation must be judged on its own facts.8 M.J. 280, 284 (C.M.A. 1980). Judge Cook concluded
that this judgment is rooted in a simple "tolerable" risk assessment that
the members would be able to put aside the inadmissible evidence. Id.

In the present case, the judge denied the defense
motion for a mistrial without stating on the record his findings of fact
or legal analysis to support this ruling. However, the judge’s actions
in giving a curative instruction and conducting individual voir dire reveal
that he concluded that this remedial action was sufficient to ensure that
the members would be able to put aside the inadmissible evidence.

Considering the facts of this case, we conclude
that the military judge abused his discretion in his ruling that the remedial
action was sufficient and in refusing to declare a mistrial. The significance
of this error is best revealed by examining why a mistrial was necessary
as to each charged offense -- the murder of Nicole and the aggravated assault
of Jasmine.

1. Mistrial as to alleged murder of Nicole

a. Prejudicial impact ofthe inadmissible evidence

First, the judge misapprehended the prejudicial
impact of Dr. Stuemky’s inadmissible testimony. The two central issues
as to Nicole’s death were the cause of her death (homicide or natural causes)
and, if homicide, the identity of the perpetrator. The prosecution asserted
that Appellant murdered Nicole by suffocation, relying primarily on the
fact that Appellant was alone with Nicole when she died and that Appellant
said she was not breathing when he got up from the couch. In his pretrial
statements, Appellant adamantly and repeatedly denied any culpability in
her death. The defense argued that Nicole’s death was the possible result
of SIDS.

Dr. Stuemky was the key prosecution witness
regarding both these issues. Because of his unique position at Children’s
Hospital and his involvement with Nicole’s case over several years, Dr.
Stuemky’s testimony was important in both breadth and depth. He opined
that Nicole did not die a natural death, but that her death was a homicide.
He based this conclusion on his findings that her death was consistent
with child abuse, inconsistent with SIDS, and that the autopsy report was
consistent with the conclusion that she had been suffocated. He also expressly
identified Appellant as the perpetrator.

The significance of his improper testimony
is clear from several factors. Dr. Stuemky had a unique, authoritative
role in this case as an expert witness. His extensive experience and multifaceted
career in academia and medical practice, as well as his positions on the
Child Protection Committee and the Death Review Board, bolstered his credibility.
He was the principal expert witness to establish the alleged pattern of
abuse and to rebut the defense argument that Nicole possibly died of SIDS.
Finally, the trial counsel repeatedly relied on Dr. Stuemky’s testimony
in opening statement and initial and rebuttal closing arguments. Building
upon Dr. Stuemky’s credentials and involvement in the case, trial counsel
used his testimony to provide details of injuries and abuse, to explain
Nicole’s death, and to establish a pattern of Appellant’s abuse of his
daughters.

We reject the lower court’s assertion that
"there is less to Dr. Stuemky’s statement than might appear at first blush."
Diaz,
56 M.J. at 802. The lower court reasoned that identity of the perpetrator
was not an issue in this case because of Appellant’s pretrial admissions
that he was alone with Nicole when she died. The court further noted that
Dr. Stuemky’s opinion was based on the fact that Nicole did not die of
natural causes. Id. Dr. Stuemky’s testimony identifying Appellant
as a perpetrator violated a fundamental rule of law that experts may not
testify as to guilt or innocence. His testimony was particularly egregious
as the defense filed a motion to exclude this testimony, the judge expressly
ruled that this testimony was improper, and trial counsel stated he had
informed the witness of the judge’s ruling to limit the witness’s testimony.

As the cause of Nicole’s death was a threshold
issue before the panel, Dr. Stuemky’s identifying Appellant as the perpetrator
could be viewed by the members as bolstering his assertion that she was
murdered and did not die a natural death. SeeUnited States v.
Boyd, 55 F.3d 667, 672 (D.C. Cir. 1995)("[T]he jurors may rely on the
purported expertise of the Government witness to cure the ambiguity that
they face . . . . There would be little need for a trial before a jury
if an expert is allowed simply to declare the defendant’s guilt."). Dr.
Stuemky’s testimony was presented as a definitive resolution of the issues
of both cause of death and identity of the perpetrator. In this homicide
prosecution, the prejudicial impact of linking these two issues was immediate,
direct, and powerful, as it was an impermissible expert opinion of Appellant’s
guilt.

Second, the judge failed to consider adequately
the context of Dr. Stuemky’s impermissible expert testimony. Dr. Stuemky’s
inadmissible opinion testimony immediately followed the testimony of Ms.
Amlin that she "was convinced that he killed his daughter." Although the
judge instructed the panel not to consider her belief that Appellant committed
a crime, we consider the juxtaposition of Dr. Stuemky’s inadmissible testimony
and Ms. Amlin’s testimony to have had a cumulative prejudicial impact on
the panel. Regarding the other defense challenges to the admission of Ms.
Amlin’s testimony, we have assumed without deciding, only for purposes
of this appeal, that her testimony was otherwise admissible.

b. Inadequacy of the curative instruction

In light of these trial developments, we reject
the judge’s implicit ruling that a curative instruction could purge prejudice
from this error. After Dr. Stuemky identified Appellant as the murderer,
the judge made a futile attempt to "unring the bell." SeeUnited
States v. Armstrong, 53 M.J. 76, 82 (C.A.A.F. 2000) (citations omitted).
A curative instruction is the preferred remedy, and the granting of a mistrial
is an extreme remedy which should only be done when "inadmissible matters
so prejudicial that a curative instruction would be inadequate are brought
to the attention of the members." R.C.M. 915(a) discussion. Recently, this
Court stated, "We have often held that a curative instruction can render
an error harmless." Armstrong, 53 M.J. at 82 (citations omitted).
However, in United States v. Rosser, this Court reaffirmed that
a curative instruction is not a perfunctory exercise, stating:

It is clear that the mantle of judicial discretion
will not protect a decision based on the judge’s arbitrary opinions as
to what constitutes a fair court-martial. Likewise, the military judge
must engage in a sufficient inquiry as a matter of law to uncover sufficient
facts to decide the issue before him.6 M.J. 267, 271 (C.M.A. 1979). We encourage voir
dire to ensure the members not only understand but also will adhere to
the curative instructions. Under some circumstances, however, an instruction
followed by voir dire of the members does not cure the prejudice toward
the accused and the judge must grant a mistrial. In such instances, the
judge’s failure to do so is an abuse of discretion.

Here, as in Armstrong, we have "grave
doubts" about the military judge’s ability to "unring the bell." We view
the instructions regarding the inadmissible evidence as both inadequate
and confusing. Also, we do not consider that the Government’s case was
as strong as asserted by the lower court.

The instruction was inadequate and confusing
in several facets. Given the inflammatory nature of Dr. Stuemky’s impermissible
testimony, the military judge should have immediately instructed the members
regarding the impropriety of Dr. Stuemky’s testimony that Nicole was murdered
and that Appellant was the perpetrator. Instead, the military judge then
surrounded his admonition not to consider Dr. Stuemky’s impermissible testimony
with an instruction telling the members how powerful expert testimony is
and an explanation that the impermissible portion of Dr. Stuemky’s testimony
was "not helpful." In this context, the impact of the military judge’s
admonition not to consider the impermissible portion of Dr. Stuemky’s testimony
was significantly diluted.

Furthermore, the instruction was confusing
because it failed to provide proper guidance for the panel’s deliberations.
We note that the instruction was inconsistent with the prior ruling of
the judge as to the scope of Dr. Stuemky’s testimony. Initially, the judge
ruled, outside of the presence of the members, that Dr. Stuemky could testify
that Nicole’s death was a homicide. He also ruled that Dr. Stuemky could
testify that the injuries were caused by child abuse. However, when the
judge provided the curative instruction to the members, the judge stated
that Dr. Stuemky could not opine that a crime occurred. In light of the
judge’s ruling and the testimony at trial, the judge had an obligation
to be specific and precise. His failure to do so here rendered the instruction
ineffective. SeeUnited States v. Jackson, 6 M.J. 261, 263
n.5 (C.M.A. 1979); United States v. Groce, 3 M.J. 369, 370-71 (C.M.A.
1977).

Finally, we doubt the efficacy of the curative
instruction. Instructed contemporaneously with the testimony of Ms. Amlin
and Dr. Stuemky, the panel was given a confusing mixed signal. Despite
instructions that witnesses could not testify that the accused committed
a crime, the panel heard both witnesses plainly identify Appellant as the
perpetrator of a murder. The members could hardly appreciate the gravity
of the error or the importance of the limiting instructions where it appeared
that such testimony was permissible. There are situations where the judge
can "unring the bell" but we do not believe he did so in this instance.

c. Consideration of other evidenceincluding the uncharged misconduct

We do not evaluate these trial developments
in a vacuum, but are compelled to consider all the evidence in measuring
the impact of any error. Accordingly, we next consider all the evidence
in the process of evaluating whether the limiting instructions provided
an adequate remedy. SeeUnited States v. Weeks, 20 M.J. 22,
25 (C.M.A. 1985).

Although Appellant asserted he was alone with
Nicole at the time of her death, in his pretrial statements Appellant repeatedly
denied his culpability. There were no eyewitnesses to Nicole’s death. There
was no forensic evidence that directly implicated Appellant in the death
of the child. The autopsy report listed the cause of death as unknown.

The prosecution’s case was built on circumstantial
evidence. The linchpin of this case was the prosecution’s strategy to establish
a pattern of abuse by Appellant against his infant daughters. The lower
court also relied on the "doctrine of chances" as a theory to implicate
Appellant. SeeDiaz, 56 M.J. at 802 (quoting United States
v. Tyndale, 56 M.J. 209, 213 (C.A.A.F. 2001)(it "is unlikely a defendant
would be repeatedly, innocently, involved in similar, suspicious circumstances.")).
To support this pattern of abuse theory, the prosecution relied upon prior
acts of uncharged misconduct relating to injuries to Nicole. Therefore,
we will carefully examine the uncharged misconduct evidence.

Recently, in United States v. Humpherys,
this Court summarized the legal requirements and test for the admissibility
of uncharged misconduct stating in part:

"[E]vidence which is offered simply to prove
that an accused is a bad person is not admissible" under [M.R.E.] 404(b),
Manual for Courts-Martial, United States (2000 ed.). United States v.
Reynolds, 29 MJ 105, 109 (CMA 1989). [M.R.E.] 404(b), however, is a
rule of inclusion, not exclusion. "[T]he sole test under [M.R.E.] 404(b)
is whether the evidence of the misconduct is offered for some purpose other
than to demonstrate the accused’s predisposition to crime

. . . ." United States v. Tanksley,
54 MJ 169, 175 (2000)(quoting United States v. Castillo, 29 MJ 145,
150 (CMA 1989)). As the Supreme Court stated when speaking of [M.R.E.]
404(b)'s counterpart, Fed.R.Evid. 404(b): "The threshold inquiry a court
must make before admitting similar acts evidence under Rule 404(b) is whether
that evidence is probative of a material issue other than character." Huddleston
v. United States, 485 U.S. 681, 686, 108 S.Ct. 1496, 99 L.Ed. 2d 771
(1988). In addition to having a proper purpose, the proffered evidence
must meet the standards of [M.R.E.] 104(b), 402, and 403. SeeReynolds,
29 MJ at 109.

Reflecting the combined requirements of these
rules, our Court applies a three-pronged test for determining admissibility
of other-acts evidence under [M.R.E.] 404(b). Seeid. We
evaluate: (1) whether "the evidence reasonably supports a finding by the
court members that appellant committed prior crimes, wrongs or acts"; (2)
"[w]hat fact of consequence is made more or less probable by the existence
of this evidence"; and (3) whether "the probative value [is] substantially
outweighed by the danger of unfair prejudice[.]" Id. (internal quotations,
ellipses, and citations omitted); seealsoTanksley,
54 MJ at 176-77. "If the evidence fails any of the three tests, it is inadmissible."
United
States v. Cousins, 35 MJ 70, 74 (CMA 1992); accordReynolds,
29 MJ at 109.

57 M.J. 83, 90-91 (C.A.A.F. 2002) (footnote omitted).

The uncharged misconduct evidence related to
alleged abuse of Nicole and included leg and rib fractures, bruises, and
the burn to her face. Under the three-pronged test set forth in Reynolds,
we hold that the military judge abused his discretion by admitting all
the uncharged misconduct. Under the circumstances of the case, the prejudice
from this error exacerbated the prejudice from Dr. Stuemky’s testimony.

The trial evidence was insufficient to establish
that Appellant inflicted the leg and rib fractures and the bruise to Nicole’s
chest. There is minimal evidence to establish when and how Nicole suffered
the fractured ribs, broken leg, and the bruise to her chest. Also, there
was no evidence to establish who was culpable for the injuries. While Appellant
had access to Nicole, he was by no means the only one with the opportunity
to inflict these injuries. Appellant’s wife was the primary caregiver and
testified that other people had access to Nicole, including several babysitters
and Appellant’s younger brother. The Government’s written response to the
defense motion to suppress this evidence effectively conceded the lack
of proof to implicate Appellant in those injuries. Trial counsel stated,
"Evidence of the broken bones and bruises is not being offered to show
that the accused actually caused these injuries, but to explain the reasoning
behind Dr. Stuemky’s opinion that Nicole was an abused child." In essence,
we view all the factors relied on by the prosecution as "rather generic"
rather than "highly probative of identity." SeeUnited States
v. Ferguson, 28 M.J. 104 (C.M.A. 1989).

We recognize that "when the crime is one of
infanticide or child abuse, evidence of repeated incidents is especially
relevant because it may be the only evidence to prove the crime." United
States v. Woods, 484 F.2d 127, 133 (4th Cir. 1973). However, there
must be sufficient evidence to establish Appellant’s culpability regarding
an incident of alleged misconduct in order to establish the relevance of
that incident. Each alleged incident of uncharged misconduct must pass
through the "Reynolds filter." The prosecution cannot merely lump
together a series of incidents and assert that together they establish
Appellant committed each act of abuse. Although the standard for the first
prong of the test for admissibility of uncharged misconduct is low, we
find that standard was not met here. United States v. Browning,
54 M.J. 1, 6 (C.A.A.F. 2000). It was error to admit evidence regarding
the broken bones and the bruise to Nicole’s chest, as the evidence fails
to meet the first prong of the Reynolds test.

Furthermore, regarding the uncharged misconduct
of the burn to Nicole, we note that the defense supported its explanation
of this incident as an accident by presenting testimony from the chairman
and Chief Executive Officer of the vaporizer manufacturer. He testified
by stipulation that he had "received complaints from customers who were
burned by the steam coming out of one of [his company’s] steam vaporizers.
[He has] even burned [himself] several times accidentally by allowing [his]
arm to go through the steam coming from a vaporizer."

We reject the prosecution’s assertion that
this incident is relevant under prong two of Reynolds to the charged
offense of Appellant murdering Nicole. With regard to the murder charge,
Appellant asserted that Nicole died from unexplained circumstances. Appellant
did not assert that he had done any act that caused harm to Nicole. He
did not assert either accident or mistake. Appellant’s defense was a general
denial.

The prosecution attempted to "create an act
by Appellant," an accidental injury to Nicole, and then to rebut it by
offering uncharged misconduct. The root of the problem with this prosecution
strategy is that there was no fact of consequence or act of Appellant for
the prosecution to rebut or explain. The prosecution was not permitted
to "create an act by Appellant" and then to offer uncharged misconduct
evidence to rebut or explain it. SeeUnited States v. Graham,
50 M.J. 56 (C.A.A.F. 1999). Simply stated, the prosecution cannot introduce
uncharged misconduct to rebut a defense that was never raised or presented
by the defense. Such evidentiary bootstrapping is not permitted. SeeUnited States v. Maxwell, 21 M.J. 229, 230 (C.M.A. 1986)("[T]he
prosecution cannot turn a defense witness into a character witness through
cross-examination and, thereby, bootstrap otherwise inadmissible evidence
into the case.");
Ferguson, 28 M.J. at 109 ("Two bodies of otherwise
inadmissible testimony cannot bootstrap each other into admissibility.").3

Finally, in light of the egregious error in
Dr. Stuemky’s testimony and the related error in Ms. Amlin’s testimony,
in the context of the prosecution strategy of relying on a pattern of abuse,
we have grave doubt that the panel could separate and fairly consider the
uncharged and charged misconduct. Under the prosecution theory, these events
of uncharged and charged misconduct were inextricably intertwined. This
draws into question whether a panel could disregard Dr. Stuemky’s expert
testimony that Appellant murdered Nicole but consider, for the proper purpose
only, the uncharged evidence of Appellant’s abusing her.

As a result of the exposure of the members
to Dr. Stuemky’s powerful expert testimony that Appellant murdered his
daughter, we are left with grave doubt that the panel could fairly evaluate
the uncharged misconduct evidence. Simply stated, we believe that the panel’s
hearing Dr. Stuemky’s testimony so fueled the prejudicial impact of the
uncharged misconduct evidence that it rendered it inadmissible under the
third prong of Reynolds. Accordingly, we hold that the evidence
of uncharged misconduct was inadmissible for the purpose of showing a pattern
of abuse. We express no opinion as to whether the evidence of prior uncharged
acts might be otherwise admissible for another purpose at a rehearing.

Without the uncharged misconduct, the Government’s
case is substantially weakened. Even assuming, however, that the prior
acts evidence was admissible under M.R.E. 404(b), the strength of the Government’s
case remains questionable. Therefore, our view of the entire case confirms
our conclusion that it was error for the judge to deny the defense motion
for a mistrial with regard to the alleged homicide.

2. Mistrial as to alleged aggravated assault
of Jasmine

The R.C.M.s specifically authorize a judge
to declare a mistrial as to only some of the proceedings. See R.C.M.
915. This Court also has sanctioned this remedy. SeeRosser,
6 M.J. at 270-71. However, in the present case, we are not faced with the
situation where the judge granted a partial mistrial and dismissed the
murder charge. On the contrary, Appellant’s trial proceeded on both charged
offenses. Having concluded that a mistrial as to the murder charge was
required, we are left with the question of whether the members could fairly
decide whether Appellant committed an alleged aggravated assault by intentionally
burning Jasmine.

As Appellant admitted burning Jasmine, the
panel decision regarding this offense boiled down to one issue -- was the
burn an intentional act or accident? The focus of our inquiry, therefore,
is how Dr. Stuemky’s testimony labeling Appellant as Nicole’s murderer
impacted the panel’s eventual decision.

As we evaluate the impact of Dr. Stuemky’s
testimony in the context of this case, as exacerbated by Ms. Amlin’s improper
testimony and by the evidence of uncharged misconduct, we again focus on
the prosecution strategy to use both the charged and uncharged misconduct
to establish a pattern of abuse by Appellant against his infant daughters.
While the record reveals this strategy permeated the prosecution’s case,
the primacy of this strategy is reflected in the opening line of the prosecutor’s
rebuttal argument, "Members of the panel, there is a pattern here." Nowhere
is this pattern of abuse strategy more evident than in this argument when
assistant trial counsel responded to the defense assertion that there was
no intentional assault of Jasmine. Assistant trial counsel stated to the
members, "Anyone of us can look at this picture and see the evidence of
abuse [Prosecution Exhibit 10]." To illustrate his point, trial counsel
showed the members the picture of Nicole’s burn, Prosecution Exhibit 10,
rather than the picture of Jasmine’s burn, Prosecution Exhibit 3. This
example illustrates how the prosecution interwove the two charged offenses
and alleged uncharged misconduct to accomplish the prosecution strategy
of establishing Appellant’s pattern of abuse.

Similarly, the lower court recognized the prosecution’s
strategy and expressly relied on evidence of Appellant’s pattern of abuse
to sustain the findings. Diaz, 56 M.J. at 798. The lower court’s
reliance on this evidence supports our view that the prosecution of these
two offenses was inextricably intertwined.

Another important trial development we have
considered was the improper testimony of Dr. Tremaine, with regard to Jasmine’s
burn, that Appellant was "listed as the prime perpetrator, or the perpetrator,
of this non-accidental trauma." The admission of this evidence was plain
error. SeeBirdsall, 47 M.J. at 409-10. This error, in light
of Dr. Stuemky’s and Ms. Amlin’s inadmissible testimony, further calls
into question the fairness of this trial. This fact of a third witness
identifying Appellant as the perpetrator in the other charged offense,
the burn to Jasmine, raises the question of how many times this Court will
permit the prosecution to "ring the bell." We simply conclude we cannot
condone this error for a third time.

This inadmissible evidence from Dr. Stuemky,
Dr. Tremaine, and Ms. Amlin magnified the impact of these errors on the
members in a case where the panel requested clarifying instructions from
the judge and deliberated on findings for almost six hours. Each evidentiary
error was significant, and together they denied Appellant a fair trial.
SeeBirdsall, 47 M.J. at 410 (plain error for expert to act as human
lie detector); United States v. Garza, 608 F.2d 659, 664-66 (5th
Cir. 1979)(it was plain error for the prosecutor to "testify" as an expert
witness and opine in closing argument as to the guilt or innocence of the
accused); but seeUnited States v. Waldman, 310 F.3d 1074,
1078 (8thCir. 2002)(where there was substantial evidence of
guilt, no plain error for expert to opine that accused "had an intent to
kill a policeman.").

In making this decision, we again specifically
consider if the uncharged misconduct relating to Nicole’s burn and the
other evidence implicating Appellant in Jasmine’s burns render harmless
any error in the admission of Dr. Stuemky’s testimony. In so doing, we
again conclude that the uncharged misconduct relating to Nicole’s burn
would be inadmissible. The panel’s hearing Dr. Stuemky’s testimony so exacerbated
the prejudicial impact of the uncharged misconduct evidence relating to
Nicole’s burn that it rendered this evidence inadmissible under the third
prong of Reynolds. Viewing the case as it was prosecuted, we find
the circumstances and context of this serious error cast substantial doubt
upon the fairness and impartiality of the trial. We are left with grave
doubt that the members could fairly and impartially decide whether Appellant
committed an alleged aggravated assault on Jasmine by intentionally burning
her. This decision is rooted in our understanding of human nature and the
purpose of a criminal trial. There are limits to what a panel can be expected
to disregard. The human mind of a member is not a blackboard where the
judge, by a curative instruction, can irrevocably erase powerful inadmissible
evidence.

We do not believe that the members could have
put out of their minds that three witnesses labeled Appellant guilty of
the charged offenses. While we have acknowledged the evidence implicating
Appellant, we reaffirm that guilt is established only by a fair trial.
In the present case, Appellant was denied a fair trial. A partial mistrial
is not an appropriate remedy in this case. SeeUnited States
v. Harriston, 329 F.3d 779, 789 (11th Cir. 2003).

In summary, we hold that the trial judge erred
in not granting a mistrial as to both charged offenses. Similarly, the
Court of Criminal Appeals erred in affirming the findings and sentence.

Decision

For these reasons, the decision of the United
States Army Court of Criminal Appeals is reversed. The findings and sentence
are set aside. A rehearing is authorized.

FOOTNOTES:

1 We heard
oral argument in this case at New England School of Law, Boston, Massachusetts,
on April 1, 2003, as part of "Project Outreach." SeeUnited States
v. Allen, 34 M.J. 228, 229 n.1 (C.M.A. 1992).

2
By this time, the prosecution of Appellant for the November 1992 burning
of Nicole with the vaporizer was barred by the statute of limitations.
See
Article 43(b)(1), Uniform Code of Military Justice, 10 U.S.C. § 843(b)(1)
(2000)(five-year statute of limitations).

3
We disagree with the assertion in the separate opinion that this case is
similar to Estelle v. McGuire, 502 U.S. 62 (1991). In our view,
the nature, quantum, and quality of the evidence of intentional physical
abuse in McGuire was significantly different from this case. Most
importantly, McGuire is not a valid precedent for deciding an issue
involving Military Rule of Evidence 404(b).
McGuire involved a petition
for habeas corpus. The Supreme Court specifically declined to decide whether
the California courts correctly applied the rules of evidence, holding
that review of the evidentiary question "is no part of a federal court’s
habeas review of a state conviction." 502 U.S. at 67. The only question
addressed by the Supreme Court was whether the trial judge’s ruling on
the admissibility of "bad acts evidence" and the limiting instruction regarding
that evidence "so infected the entire trial that the resulting conviction
violated due process." Id. at 72 (quoting Cupp v. Naughten,
414 U.S. 141, 147 (1973)). The Supreme Court resolved this narrow constitutional
issue against the petitioner without deciding the evidentiary issue.

CRAWFORD, Chief Judge (concurring in part and
dissenting in part):

Introduction

To reach its desired result on the key issue,
the majority concludes that all the evidence of Appellant’s prior abuse
of Nicole was inadmissible under Military Rule of Evidence 404(b) [hereinafter
M.R.E.]. Yet Huddleston v. United States, 485 U.S. 681 (1988), and
Estelle
v. McGuire, 502 U.S. 62 (1991), make clear that M.R.E. 404(b) is a
rule of inclusion, not a rule of exclusion, and that under this rule, the
evidence of Appellant’s prior abuse of Nicole was admissible.

In Huddleston, the Court noted:

Article IV of the Rules of Evidence deals
with the relevancy of evidence. Rules 401 and 402 establish the broad principle
that relevant evidence — evidence that makes the existence of any fact
at issue more or less probable – is admissible unless the Rules provide
otherwise.485 U.S. at 687. The Court also quoted the Rules
Advisory Committee, whichspecifically declined to offer any "mechanical
solution" to the admission of evidence under 404(b). Rather, the Committee
indicated that the trial court should assess such evidence under the usual
rules for admissibility: "The determination must be made whether the danger
of undue prejudice outweighs the probative value of the evidence in view
of the availability of other means of proof and other factors appropriate
for making decisions of this kind under Rule 403."Id. at 688 (citations omitted). The majority,
however, ignores and distorts Huddleston, as well as McGuire,
with the end result that future child abuse prosecutions may now be more
difficult in the military justice system than in the civilian criminal
justice system.

Even so, I agree with the majority that it
was error for Dr. Stuemky to testify -– contrary to the military judge’s
express instructions -- that he believed Appellant killed Nicole. Likewise,
I also agree that to the extent Ms. Amlin similarly testified, that too
was error.1SeeUnited
States v. Douglas, 57 M.J. 270, 271-72 (C.A.A.F. 2002)(unclear if military
judge’s redaction order was followed by counsel). Unlike the majority,
however, I conclude these errors did not substantially influence the members’
findings of guilty in light of: (1) the undisputed facts surrounding Nicole’s
death; (2) the admissible portions of Dr. Stuemky’s and other expert testimony
concerning the cause of Nicole’s death; (3) the admissible evidence of
Appellant’s prior abuse of Nicole and subsequent abuse of Jasmine; (4)
Appellant’s admissions to Ms. Amlin and his resulting loss of credibility;
and (5) the military judge’s curative instructions. SeeUnited
States v. Armstrong, 53 M.J. 76, 81 (C.A.A.F. 2000)(expert testimony
that an accused committed charged acts of abuse is error tested for harmlessness);
United
States v. Charley, 189 F.3d 1251 (10th Cir. 1999)(harmless error when
several experts testified that sexual abuse actually occurred or premised
their testimony on fact of actual abuse).

For these reasons, I respectfully dissent.

Undisputed Facts

At trial and on appeal, the Government and
Appellant agreed on every fact surrounding Nicole’s death -– except one.
Specifically, they both agreed that Appellant retrieved Nicole from her
crib and brought her into the living room. They both agreed Appellant’s
wife was asleep in her bedroom at the time. They both agreed Appellant
laid Nicole across his lap as he sat on the sofa. They both agreed she
was alive at the time. They both agreed no one else was in the room besides
Nicole and Appellant. And they both agreed that Nicole passed from life
to death as she laid there in Appellant’s lap.

The only thing they disagreed on was whether
Nicole died innocently of natural causes as she laid in Appellant’s lap,
or whether she died maliciously through suffocation as she laid in Appellant’s
lap. Either way, however, she died at the hands of Appellant, and that
was not, and is not, in dispute.

Dr. Stuemky’s Inadmissible Testimony

Dr. Stuemky was asked by the prosecutor: "Did
you come to any conclusion with regard to your review of Nicole’s death[.]"
In response, and contrary to express instructions from the prosecutor at
the request of the military judge, Dr. Stuemky testified that "this was
a homicide death . . . a physical abuse death. And furthermore, I felt
that the perpetrator was the father."

The express instructions he received were that
he could opine only that the death was "consistent with child abuse," and
had he limited himself in that way, there would have been nothing objectionable
about his testimony. SeeCharley, 189 F.3d at 1264 (no abuse
of discretion allowing expert to "express an opinion that the evidence
is consistent or inconsistent with the victim’s allegations of sexual abuse");
United
States v. Birdsall, 47 M.J. 404, 409 (C.A.A.F. 1998)(quoting
United
States v. Whitted, 11 F.3d 782, 785 (8th Cir. 1993))("A doctor can
also summarize the medical evidence and express an opinion that the evidence
is consistent or inconsistent with the victim’s allegations of sexual abuse.").

Before this Court, Appellant argues in Granted
Issues I and II that he was materially prejudiced by Dr. Stuemky’s improper
testimony, and that the military judge erred in not granting the requested
mistrial. The majority agrees. I, however, do not.

Discussion

As a starting point, I note that Dr. Stuemky’s
improper testimony consisted of two parts. The first was a conclusion that
in his opinion, "this was a homicide death . . . a physical abuse death."
The second was a conclusion that "the perpetrator was the father." Importantly,
however, given the undisputed facts in this case, the second part of Dr.
Stuemky’s testimony (that Appellant was the killer) was superfluous because
it added nothing to what he already said with the first part of his improper
testimony (that the death was a homicide). Everyone agreed, including the
defense, that Nicole died while in Appellant’s hands and in the presence
of no one else. Thus, identity was never an issue, and neither was the
following, undisputed reality: If Nicole’s death was a homicide, it was
Appellant who killed her.

That being the case, once Dr. Stuemky testified
that Nicole’s death was a homicide, all the damage (if any) was done, and
no additional prejudice could result from his subsequent testimony that
Appellant was the one who killed her. That testimony was nothing more than
a redundancy, stating merely the sole and obvious conclusion that flowed
from the undisputed facts in this case. Thus, it appears that it is a majority
of this Court, not the military judge or the court below, that "misapprehend[s]
the prejudicial impact of . . . [the] inadmissible testimony" by treating
the issues of homicide and identity as co-equal in this case. __ M.J. at
(27-29).
They are not co-equal. They are one and the same.

Properly narrowed, Granted Issue I asks only
whether Dr. Stuemky’s single, impermissible statement that Nicole’s death
was a homicide -– as opposed to the permissible statement that her death
was consistent with child abuse -- substantially influenced the members’
finding of guilty. In light of the other evidence in this case, Appellant’s
complete lack of credibility, and the military judge’s curative instructions,
I conclude that it did not, and that as a result, the military judge did
not abuse his discretion by not granting a mistrial (Granted Issue II).

Dr. Stuemky’s and Other Admissible ExpertTestimony on the Cause of Death

As a member of Oklahoma’s Child Death Review
Board, Dr. Stuemky performed a thorough review of the circumstances surrounding
Nicole’s death. That review led him to the following conclusions, to which
he testified at trial: (1) there was no "biological, anatomical, or toxicological"
cause of Nicole’s death; (2) Nicole was "way beyond" the age of Sudden
Infant Death Syndrome (SIDS); (3) as a result, her death was not a "natural
cause" death; and (4) her death was "consistent with suffocation."

Specifically, Dr. Stuemky testified that SIDS
is "defined by the National Institutes of Health [(NIH)] in this country
as simply a sudden, unexplained death in an infant under 12 months of age
in whom an autopsy has in fact been performed, and no other causes or abnormalities
are noted[.]" He further testified as follows regarding SIDS:

Twelve months – the absolute outer limits
of 12 months was endorsed by the NIH. SIDS is primarily an event that
occurs in infants under 6 months of age. Ninety percent of SIDS deaths
are under 6 months of age, with the peak time of SIDS deaths between 2-4
months of age. SIDS is, very interestingly enough, uncommon in the first
month of life. It’s not until after the first month of life that one begins
to see SIDS deaths. By 6 months of age, 90 percent of all SIDS deaths have
occurred that you’re going to see. Indeed, many people have felt that one
shouldn’t call a SIDS death beyond 6 months of age. But the NIH finally
felt that the consensus should be that the absolute, outer time limit
for labeling a SIDS death was 12 months of age.(Emphasis added.) Nicole, of course, was 14 months
old when she died, which Dr. Stuemky testified was "very significant,"
because in the absence of a biological, anatomical, toxicological, or other
identifiable cause of death, "we would not consider this a natural cause
of death . . . . And our concern is that it’s most likely consistent with
suffocation."

Dr. Stuemky then made the following observation,
which every member of Appellant’s court-martial must also have known through
common sense and common experience: "Children just don’t die suddenly laying
on a parent’s lap." Certainly a reasonable and experienced member of society
knows that a healthy 14-month-old child -- "way beyond" the age of SIDS
-- does not just die without a cause. That is why I conclude on this record
that notwithstanding Dr. Stuemky’s inadmissible testimony, the members
would still have convicted Appellant based on the strength of Dr. Stuemky’s
admissible testimony, and the other admissible evidence and testimony.

Part of that other evidence and testimony came
from Dr. Balding, the medical expert who performed the autopsy on Nicole,
which he described as entailing the "opening of the body with surgical
incisions, including the head and examination of the brain and all of the
major internal organs. Again, this is done to look for evidence of injury
or disease. At this time also, we take specimens such as blood, urine,
or any other bodily fluids which can be used for later drug analysis; that
sort of thing. Also at this time, postage stamp-sized pieces of the major
organs; these are then processed and examined under the microscope at a
later time." Based on this autopsy, Dr. Balding testified Nicole’s heart,
lungs, kidneys, and thyroid were all "normal," and that "as far as the
internal organs go, there was no evidence of injury or natural disease."
He also testified that Nicole’s brain was "normal" and "there was no evidence
of injury or disease to the brain."

As for the toxicological screen that was conducted,
he testified that "it was essentially negative, except there was brompheniramine,
which is an over-the-counter cold medication [Dimetapp]. It was a very
small amount that was present. . . . [I]t was negative in terms of having
any relation to causing the death." Dr. Balding also testified there was
no anatomical cause of death and he "could find no cause of death of Nicole,"
but that the autopsy results were consistent with suffocation.

Appellant’s Prior Abuse of Nicole andSubsequent Abuse of Jasmine

Death by suffocation as opposed to SIDS was
also consistent with Appellant’s prior and subsequent abuse of his children,
which was "proximate in time" to Nicole’s death and, along with the other
evidence in this case, "established that [Appellant] had both the inclination
and the opportunity" to seriously harm Nicole. SeeCharley,
189 F.3d at 1271 (discussing relevance of defendant’s prior abuse of victim).

It is here, however, that several of the other
Granted Issues dovetail, because a good deal of the evidence of these other
instances of abuse came from statements Appellant made to medical and social
work personnel -- statements Appellant argues were inadmissible because
(1) these people did not read him his rights before questioning or counseling
him, and (2) he was coerced into making some of the statements. I therefore
address these arguments first, before further addressing the relevance
and admissibility of Appellant’s prior abuse of Nicole and subsequent abuse
of Jasmine.

Questioning by Captain (CPT) Tremaine

On October 13, 1995, Appellant’s nine-month-old
daughter Jasmine was referred to CPT Tremaine by Hawaii Child Protective
Services for evaluation of a three-month-old burn located on her left inner
thigh. The evaluation was part of a Suspected Child Abuse and Neglect (SCAN)
work-up, and included CPT Tremaine questioning both Appellant and his wife
about the burn to help him determine whether it resulted from an accidental
or non-accidental cause. In addition, CPT Tremaine closely examined the
burn and conducted many other medical tests over almost a week’s time in
order to properly diagnose the cause of Jasmine’s injury.

Regarding the need for and importance of determining
whether the cause of the burn was accidental or non-accidental, CPT Tremaine
testified as follows:

Our main concern as the physician is – we
are the physician of that child. It is our job to protect that child. So
in establishing the diagnosis of non-accidental versus accidental trauma,
we are, in essence, protecting that child from potential future events.

. . . .

It has important bearing on the child. Children
who are subject to non-accidental trauma are at greater risk for future
episodes of non-accidental trauma. That has been proved over and over again.
The only effective way to treat that is removal of the child from the house,
or from the potential abusive situation.CPT Tremaine also testified that questioning parents
about the causes and extent of their children’s injuries was standard operating
procedure, regardless of "whether it’s a diagnosis of alleged child sexual
abuse, or some other injury or disease[.]"

Turning to CPT Tremaine’s actual questioning
of Appellant, CPT Tremaine did not read Appellant his rights beforehand,
but he did inform Appellant "[t]he purpose was for a SCAN work-up . . .
a ‘Suspected Child Abuse and Neglect’ work-up . . . to establish a diagnosis
and find out if there was accidental or non-accidental trauma done[.]"
Moreover, although law enforcement officers in plain clothes arrived after
CPT Tremaine began questioning Appellant, they only did so because as a
matter of protocol, they were notified a SCAN work-up was underway; they
never entered the room where CPT Tremaine and Appellant were; they never
questioned Appellant; they never communicated with CPT Tremaine during
the questioning; and they never gave CPT Tremaine questions to ask Appellant.

In these circumstances, Appellant agreed to
answer CPT Tremaine’s questions, and the statements he provided were used
against him at his court-martial over the defense’s objection. The specific
content of those statements I discuss more fully infra. For now,
all that is needed is to decide whether CPT Tremaine was required to read
Appellant his rights under Article 31, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. § 831 (2000), before questioning him.
Appellant argues in Granted Issue III that CPT Tremaine was so required,
and that as a result, Appellant’s statements to him were inadmissible.
Appellant is mistaken.

Article 31(b) Warnings

Article 31(b) provides:

No person subject to [the UCMJ] may interrogate,
or request any statement from an accused or a person suspected of an offense
without first informing him of the nature of the accusation and advising
him that he does not have to make any statement regarding the offense of
which he is accused or suspected and that any statement made by him may
be used as evidence against him in a trial by court-martial.The rationale behind Congress’s passage of Article
31(b) was recently discussed in United States v. Swift, 53 M.J.
439, 445 (C.A.A.F. 2000), where we observed:In the armed forces, a person learns from
the outset of recruit training to respond promptly to the direct orders
and the indirect expectations of superiors and others, such as military
police, who are authorized to obtain official information. Failure to respond
to direct orders can result in criminal offenses unknown in civilian life
. . . .

In such an environment, a question from a superior
or investigator is likely to trigger a direct response without any consideration
of the privilege against self-incrimination. The Article 31(b) warning
requirement provides members of the armed forces with statutory assurance
that the standard military requirement for a full and complete response
to a superior’s inquiry does not apply in a situation when the privilege
against self-incrimination may be invoked.

See alsoUnited States v. Harvey,
37 M.J. 140, 143 (C.M.A. 1993).

Thus, although by its terms, Article 31 seems
to apply to all questioning of suspects and accuseds by individuals subject
to the UCMJ,2 applying
the rationale behind Article 31(b), our Court has held that "this statute
requires warnings only when questioning is done during an official law-enforcement
investigation or disciplinary inquiry." United States v. Loukas,
29 M.J. 385, 387 (C.M.A. 1990). Consequently, many non-commanders and non-law
enforcement personnel are not required to administer Article 31(b) warnings
before questioning service-members. See, e.g., United States
v. Raymond, 38 M.J. 136 (C.M.A. 1993)(psychiatric social worker); United
States v. Moreno, 36 M.J. 107 (C.M.A. 1992)(state social worker); United
States v. Pittman, 36 M.J. 404 (C.M.A. 1993)(section leader/ friend).

As a result, there is a long-standing principle
that questioning by medical personnel for the sole purpose of diagnosis
and treatment, even if a crime is suspected, does not need to be
preceded by Article 31 warnings. SeeUnited States v. Bowerman,
39 M.J. 219, 221 (C.M.A. 1994)(although doctor suspected child abuse, questioning
suspected parent without Article 31 warnings was permissible "to ascertain
the facts for protective measures and curative purposes"); United States
v. Fisher, 21 C.M.A. 223, 225, 44 C.M.R. 227, 279 (1972) (questioning
by doctor for diagnosis not "within the reach of Article 31").

In Bowerman, "a seriously injured baby
. . . ‘was going down the tubes very quickly’" when the questioning took
place. In Fisher, the accused "was in immediate danger of suffering
serious physical consequences" when he was questioned. Thus, in both cases,
timing was important. Absent immediate knowledge of the cause of the injuries,
effective treatment could be compromised.

In this case, there was no existing injury
threatening Jasmine at the time CPT Tremaine questioned Appellant. Rather,
the questioning took place as part of an evaluation of a three-month old
burn. Nonetheless, rights warnings were still not required, because as
the facts set forth above make abundantly clear, CPT Tremaine was not
acting in a law enforcement or disciplinary capacity. To the contrary,
he was acting solely on behalf of Jasmine, and solely in her best medical
interests.

Although there was no longer a threat to Jasmine
from the burn itself, the cause of the burn still had to be determined
so that, if necessary, CPT Tremaine and other medical and social work professionals
could take the steps required to effectively prevent Jasmine from suffering
the same type of physical injury in the future. Moreover, as CPT Tremaine
indicated at trial, such a procedure was nothing new. Physicians always
seek to ascertain the cause of an injury in order to prevent similar injury
in the future; and they always seek that information from parents or guardians
when injured children have not yet learned to speak, as was the case with
nine-month old Jasmine.

Thus, CPT Tremaine’s questioning of Appellant
was all about Jasmine and her medical well-being (Bowerman’s "protective
measures"), and nothing about law enforcement or disciplinary action against
Appellant (which had not even begun). The fact that the suspected cause
of Jasmine’s injury was criminal abuse as opposed to some accidental or
natural occurrence (diagnosis), and the fact that the best way to prevent
similar injury in the future was to remove Jasmine from the home as opposed
to administer medicines or physical therapy (treatment), does not negate
that dispositive fact that in this case.

That said, CPT Tremaine was not required to
read Appellant his rights before questioning him about the cause of Jasmine’s
injury. This is so regardless of CPT Tremaine’s duty to advise Child Protective
Services (CPS) of the results of Jasmine’s SCAN evaluation, and regardless
of his duty to report suspected child abuse to criminal authorities. Bowerman,
39 M.J. at 222 (citing Raymond, 38 M.J. 136)(such duties "[do] not
transform [a medical doctor] into a criminal investigator.").

Counseling With Ms. Amlin

When his evaluation was complete, CPT Tremaine
determined that Jasmine’s burn was a "classic branding injury" and was
not accidental. As a result, CPS removed Jasmine from Appellant’s home.
About a year later, though, she was returned to the home, with the condition
that Appellant move out and not visit the home while Jasmine was present,
and the further condition that Appellant successfully complete counseling
before returning permanently to the home. All this took place in Hawaii.

Complying with the CPS order, Appellant moved
out of the house. However, sometime thereafter, he was transferred to Fort
Drum, New York, while his wife and Jasmine remained in Hawaii. Once at
Fort Drum, Appellant went to the Family Advocacy Program seeking the counseling
he needed to move back in with his family. In due course, his case was
randomly assigned to a civilian social worker named Ms. Amlin. Prior to
meeting with Appellant, Ms. Amlin reviewed a letter from the Hawaiian authorities
that set forth the nature of the counseling Appellant had to receive in
order to rejoin his family. Specifically, Appellant had "to take ownership
of the abuse [of Jasmine], to take responsibility for the abuse, to develop
an empathy and understanding of the enormity of the consequences to the
child – how it would impact the child psychologically."

Ms. Amlin met with Appellant four times, and
although she never read him his rights before these sessions, she did inform
him of her duty to disclose child abuse to both the military and civilian
authorities. Eventually, Ms. Amlin did contact the authorities and inform
them about instances of Appellant abusing his children. However, at no
time during her sessions with Appellant did she take any direction from
any law enforcement authority. Moreover, no law enforcement authority attended
any of the sessions or directed that those sessions take place. Everything
that took place during those sessions took place solely within the social
work community, and in accordance with that community’s standard operating
procedures.

During his counseling sessions with Ms. Amlin,
Appellant made statements that were used against him at his court-martial
over the defense’s objection. Once again, the specific content of those
statements is not yet germane and will be discussed in detail later. For
now, it is necessary only to decide whether Ms. Amlin was required to read
Appellant his rights before the therapy sessions. Appellant argues in Granted
Issue IV that she was and that, as a result, his statements to her were
inadmissible. Appellant further argues that even if Ms. Amlin was not required
to read him his rights, his statements to her were still inadmissible because
they were coerced. Appellant is wrong.

Article 31(b) Warnings

Although by its terms, Article 31(b) applies
only to someone "subject to the [UCMJ]," consistent with the rationale
behind its passage, it also applies to a civilian investigator "(1) [w]hen
the scope and character of the cooperative efforts demonstrate that the
two investigations merged into an indivisible entity," and "(2) when the
civilian investigator acts in furtherance of any military investigation,
or in any sense as an instrument of the military[.]" United States v.
Penn, 18 C.M.A. 194, 199, 39 C.M.R. 194, 199 (1969)(internal quotations
omitted). See M.R.E. 305(d). However, just as with military medical
personnel, civilian medical personnel do not have to give Article 31 warnings
to patients when they are acting "only in a legitimate medical capacity"
and not "directly or indirectly in any law enforcement or disciplinary
capacity." United States v. Moore, 32 M.J. 56, 60 (C.M.A. 1991).

As the facts in this case make clear, Ms. Amlin
was not acting in furtherance of any military or law enforcement investigation,
or as an accessory to any law enforcement effort. Her role was solely that
of a licensed social worker trying to carry out the treatment plan mandated
for Appellant. As a result, Ms. Amlin was not required to give appellant
Article 31 warnings before the counseling sessions. SeeMoreno,
36 M.J. at 114-17 (no Article 31 warnings required when civilian social
worker who knew case was substantiated and "turned over to the prosecutor’s
office" conducted counseling sessions with accused and urged him to admit
his crimes as first step to recovery); see alsoRaymond,
38 M.J. at 138-40; Moore, 32 M.J. at 60-61.

Army Regulation 608-18

Appellant argues that Dep’t of the Army Regulation
608-18, The Army Family Advocacy Program (Sept. 1, 1995) [hereinafter AR
608-18], required Ms. Amlin to administer Article 31 warnings before her
counseling sessions with Appellant. Appellant is incorrect. In Raymond,
this Court concluded that AR 608-18

is a personnel regulation, not a law enforcement
regulation. . . . It is not a law enforcement program; it is a community
services program. The cooperative effort required by the regulation [e.g.
– the reporting requirement] does not render every member of the military
community a criminal investigator or investigative agent but, rather, merely
ensures that the competing interests of various segments of the military
community accommodate each other as much as possible.38 M.J. at 138-39. As a result, the Raymond
Court held AR 608-18 did not require a social worker similar to Ms. Amlin
to administer Article 31 warnings before counseling sessions similar to
those in Appellant’s case.

The version of AR 608-18 in effect at the time
Raymond
was decided is different from the version applicable in Appellant’s case,
but not significantly. Both have reporting requirements, and both have
the following language:

Except when not required by law .
. . soldiers suspected of spouse or child abuse will be advised of their
rights under Article 31, UCMJ, and of their right to counsel prior to being
questioned about abuse offenses. Soldiers who are self-referrals will also
be advised of their rights under Article 31, UCMJ, and of their right to
counsel prior to being questioned about abuse offenses.AR 608-18 at para. 3-21d (emphasis added); AR
608-18 at para. 3-24d (Sept. 18, 1987). Thus, there is no reason to construe
the current version of AR 608-18 any differently than in Raymond
as it relates to the requirement of a rights warning before therapeutic
counseling sessions unrelated to law enforcement. Such warnings are "not
required by law," because this Court has consistently said they are not.
SeeBowerman, 39 M.J. at 221; Raymond, 38 M.J. at 138-39; Moreno,
36 M.J. at 117; Fisher, 21 C.M.A. at 225, 44 C.M.R. at 279.

Voluntariness

Appellant also argues that regardless of whether
Ms. Amlin should have read him his rights, his admissions to her were involuntary
and, therefore, inadmissible because he was required to attend those sessions
and accept responsibility for the injuries to Jasmine before he could be
reunited with his family. SeeArizona v. Fulminante, 499
U.S. 279, 285-87 (1991)(totality of circumstances determines voluntariness
of confession). This argument holds no sway in light of this Court’s clear
precedent to the contrary.

In Moreno, the appellant was faced with
a choice: he could participate in counseling in an attempt to keep his
family together, with the result that anything he said might be used against
him at court-martial, or he could refuse to participate in the counseling
and risk losing his children. He opted for the former, and the foreseeable
result came to pass -– he was prosecuted and his statements were used against
him. On appeal, he argued the "choice" he faced rendered his statements
during counseling involuntary. This Court disagreed and said:

It was something of a dilemma to be sure,
but it was a dilemma of his own causing. When people abuse children in
this society, two distinct processes are triggered. One is the criminal
process, which focuses on the proper way to deal with the perpetrator.
The other is the child-protective process, which focuses on the preservation
of and best interests of the child-victim.36 M.J. at 112. The Court then concluded that
nothing was done within the child-protective process to make the appellant’s
statements involuntary (i.e., no "improper threats, inducements, or promises").

Similarly, in United States v. Ellis,
57 M.J. 375 (C.A.A.F. 2002), detectives informed the appellant there was
probable cause to arrest both him and his wife, and that if both were arrested,
their children would probably be removed from them and placed in foster
care. Thereafter, the appellant indicated he wanted to talk, waived his
rights, and confessed to child abuse crimes. Once again, the appellant
argued his confession was involuntary because it was motivated by a desire
to not lose his family. Once again, however, this Court disagreed and said:

While the detectives’ advice to appellant
concerning removing the remaining children from the home may have contributed
to his confession, the mere existence of a causal connection does not transform
appellant’s otherwise voluntary confession into an involuntary one.Id. at 379 (citing Colorado v. Connelly,
479 U.S. 157, 164 n.2 (1986)).

For the same reasons, Appellant’s statements
and admissions to Ms. Amlin were not constitutionally involuntary. The
fact that Appellant was required "to take ownership of the abuse [of Jasmine],
to take responsibility for the abuse," in order to get Jasmine back does
not lead to a different result. Factually, this is not that different from
Moreno,
where "[a]s a ‘first step’ in his recovery, [the therapist] urged [the]
appellant to admit his conduct," which the appellant did, and which helped
secure his conviction. 36 M.J. at 115. Legally too, then, the result in
Appellant’s case is the same –- constitutionally voluntary statements,
admissible against him as evidence of his other abuse of Nicole and Jasmine.

Appellant’s Prior Abuse of Nicole andSubsequent Abuse of Jasmine

Having disposed of the underlying Article 31
and voluntariness issues, I now return to the relevance and admissibility
of Appellant’s prior abuse of Nicole and subsequent abuse of Jasmine. I
deal first with his abuse of Jasmine by intentionally burning her, and
I do so because (1) Appellant’s conviction for that offense is completely
insulated from any prejudice that possibly could flow from Dr. Stuemky’s
improper testimony, and (2) Appellant’s confessed reason for committing
that offense strengthens the conclusion that his prior acts of abusing
Nicole were relevant and admissible.

Jasmine’s Branding

Regarding the scarring on Jasmine’s inner thigh,
CPT Tremaine (who evaluated the injury for purposes of the SCAN work-up)
gave expert testimony as follows:

We saw a well-healed scar on . . . her upper
thigh that had essentially a branding pattern to it, potentially three
different distinct areas.

. . . .

It was a classic branding injury, where
a hot object . . . [is] placed against the body and held there for a period,
rendering a very distinct pattern, which based on the healing and scarring
patterns, was consistent with three separate branding injuries.(Emphasis added.) This conclusion was confirmed
by pictures of the burn, admitted as Prosecution Exhibit 3. Those pictures
disclose quite clearly -- in the words of CPT Tremaine -- a "triangle"
of scar tissue (i.e., "three separate branding injuries") with "a very
distinct border" surrounding a "central area" of "normal skin" that "wasn’t
burned." In other words, "a classic branding injury," not an accidental
burn from a lighter falling one time onto Jasmine’s thigh. SeeUnited
States v. James, 55 M.J. 297, 301 (C.A.A.F. 2001)(appellant’s admissions
supported by pictures in the record).

More importantly, however, Appellant admitted
that he intentionally burned Jasmine. CPT Tremaine testified that when
he asked Appellant how Jasmine was burned, Appellant

reported that Jasmine had been laid down
to sleep that night, and when he went in to look in on her, he noticed
a centipede laying in her crib. He proceeded to obtain his lighter and
to chase the centipede around the bed and try to burn the centipede. While
he was doing that, he reported that he’d taken Jasmine into his wife’s
– where his wife was, and his wife was in their bedroom. He went back,
got Jasmine, went to the living room, reported lighting a cigarette and
dropping the lighter on Jasmine’s leg.Thereafter, Appellant repeated this lie to Ms.
Amlin at the beginning of their counseling sessions, but after several
additional sessions, he admitted intentionally burning Jasmine.

Ms. Amlin testified as follows in response
to questions from the prosecution:

Q: During that first session, what
did [Appellant] tell you about that burn?

A: Initially, he indicated that he was with
the baby and he’d lit a cigarette, and had inadvertently dropped the lighter
onto the child, causing the burn. I indicated that I felt that that probably
wasn’t possible, considering the lighter would have to be fairly hot, and
just lighting a cigarette would probably not cause that type of burn or
injury.

Mr. Diaz then changed his account of the events
and indicated that there’d been an insect of some sort in the crib, and
he didn’t want it to bite the baby, so he was trying to [d]estroy the insect
with the cigarette lighter, and while he was holding the baby and holding
this lighter on this bug, he dropped it and burned the child.

Q: That was what [Appellant] told you during
the first session?

A: Yes.

Q: During the second session, did [Appellant]
tell you that story again?

A: Initially, yes, he did. I confronted him
that again [sic]; it didn’t seem like a plausible story. I recall asking
him, "Why didn’t you just step on this insect? Why didn’t you hit it with
something? Why didn’t you just lift the baby up and away from the insect?"
It seemed like an unusual way to go about protecting the child from an
insect bite. At that point, I asked him, "What does DHS think? Do they
think you did this on purpose?" And he said, "They’d say I did it." I said,
"What would your wife’s parents say?" And he said, "They’d say I did it."
I then asked him what his parents would think about this, what would they
say caused this accident, and he said, "They’d probably say I did it."
I then asked him, "What’s the likelihood that you did it? What percentage
would you put on that you actually did this?" And he looked at me and said,
"One hundred percent." At that point, he started to tell me what had actually
happened.

. . . .

Q: Did you ask him how the injury to Jasmine
occurred?

A: Yes, I did.

Q: What was [Appellant’s] response?

A: He indicated that Mrs. Diaz was sleeping,
it was late at night, he’d taken Jasmine from the crib. He said he was
on the sofa watching television. He said he laid her down, heated the lighter
up, got it hot and placed it on her thigh. When I asked him why he did
that, he said, "I wanted to see what she would do."

(Emphasis added.)

The majority concludes that even Appellant’s
conviction for burning Jasmine must be set aside as tainted by the improper
testimony in this case. Yet how the majority reaches this conclusion escapes
me. Appellant voluntarily confessed to Ms. Amlin both this crime and
his motive. Furthermore, the expert testimony of CPT Tremaine and the
pictures of Jasmine’s scarred leg corroborated this confession, and showed
Appellant steadfastly had lied quite implausibly about the cause of Jasmine’s
injury.

In these circumstances, I conclude the improper
testimony at this trial in no way affected the members’ finding of guilty
to the aggravated assault of Jasmine. I further conclude that the strength
of the evidence proving Appellant’s aggravated assault of Jasmine also
made the evidence of Appellant’s prior abuse of Nicole relevant and admissible.

Nicole’s Burned Face and Other Injuries

About a year before Nicole’s death, when she
was only several months old, she was taken to the hospital with second
and third degree burns on her face. The intake worker at the hospital that
night testified Nicole "had a burn on her face, on the left side, from
just about her lip up to her hairline." The intake worker also testified
Nicole "had three small, round bruises just below the burn on the left
side of her face."

Nicole was treated by Dr. Oscar Falcon, who
testified as follows regarding what he saw:

I saw a young child with 2nd and 3rd degree
burns to the right – I’m sorry, to the left mid-face. The left eye, at
that time, was swollen shut. . . . I also noted on the child that there
were old bruises on the right cheek, and one on the right anterior chest.As a result of this burn injury, two things took
place. Ultimately, Nicole was removed from Appellant’s home and placed
in foster care. Immediately, however, Dr. Stuemky also examined Nicole
in his role as a member of the Child Protection Committee for Children’s
Hospital of Oklahoma. Regarding Nicole’s injuries, he testified as follows:This was a baby that had 2nd degree burns,
these were burns that cause blisters and redness, about the face, particularly
on the left side of the face. . . . It encompasses above the eye much of
the left side of the forehead, down over the top, down the bridge of the
nose, over most of the anterior surface of the nose, under the eye, and
down over the cheek and left side of the upper lip. . . . [There were also]
several bruises present on her cheek, the left side of her cheek, and .
. . an older bruise on her chest.Dr. Stuemky also testified that X-rays of Nicole
revealed older, healing rib fractures on both sides of Nicole’s body. He
testified it was "medically impossible for these fractures to have occurred
at the time of birth. These fractures happened after birth." Finally, he
testified as follows regarding Nicole’s rib injuries:Really, all the bones of infants and small
children are very pliable. They bend easier then they break . . . . [T]he
only cause of rib fractures in infants and small children, particularly
posterior rib fractures [which Nicole had], is child abuse. By that, we
mean that it takes grabbing the child’s chest and squeezing to bend those
ribs and cause the fractures. . . .

Infants in major motor vehicle accidents, or
in trauma where infants and small children [sic], if they fall out of a
5, 10 or 15-story building, certainly they can be killed in the fall, but
you don’t get rib fractures. In major motor vehicle accidents, it’s incredibly
rare, even with massive injuries to the child, you can break arms and legs
and die – but you don’t get rib fractures in these infants and small babies.
. . .

So, rib fractures in infants less than 2 years
of age are considered indicative or pathenemonic for physical abuse.

In foster care, Nicole thrived for nine months
without injury. Her foster parents testified that while in their care,
Nicole’s health was "excellent" and "she was not ill at all." However,
Nicole was returned to Appellant’s custody at the end of that time, and
two months after that she was dead in his arms.

As stated earlier, Dr. Balding performed the
autopsy on Nicole. In addition to his testimony that he could find no reason
for her death other than suffocation, he testified he found "bruises to
the scalp . . . right on the top of the head," and that X-rays showed "fractures
to the leg that were unexplained." He also testified that "[w]ithout an
explanation of those, one frankly suspects some type of an inflicted injury
on the child."

Regarding the burn to Nicole’s face, the intake
worker testified Appellant "said that he was holding her over a vaporizer,
and that’s how she got the burn." Dr. Falcon, however, testified he was
told "the steamer had fallen and hot water had splashed over the child’s
face." Dr. Falcon was "99 percent" sure it was Appellant who told him,
and not Mrs. Diaz, but regardless of who actually told him, Appellant was
present when Dr. Falcon was told that different version of the events.

Ms. Amlin also spoke with Appellant about the
burn to Nicole, and testified she asked him, "Did you not see that the
child was in distress? Steam is very hot. If she was burning, did the child
not struggle or cry out or try to move away from the source of the heat?"
In response, Appellant indicated "that she made no movement at all," and
"didn’t give any indication that [she] was being hurt." And with that response,
Appellant’s credibility evaporated, because the severity of the burn to
Nicole’s face made it implausible that she did not instantly and violently
recoil in pain, and every member of Appellant’s court-martial knew it once
they saw the pictures of that injury, admitted as Prosecution Exhibit 10.
SeeJames, 55 M.J. at 301 (appellate examination of photographs in the
record); Charley, 189 F.3d at 1271 (appellant’s lack of credibility
at trial important factor in harmless error analysis).

Regarding the bruises to Nicole’s cheek and
chest, the intake worker testified Appellant said he caused them "by kissing
on her – that he sucked on her like he likes to suck on girls." Appellant’s
wife also testified that Appellant caused Nicole’s bruises by kissing her.

Appellant argues in Granted Issue I that evidence
of the prior injuries to Nicole was inadmissible propensity evidence. The
majority agrees. Unfortunately, the majority gets it very wrong, and in
the process completely ignores Supreme Court precedent.

The Law

M.R.E. 404(b) states:

Evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show action
in conformity therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident[.]Thus, this Court has said that such evidence is
admissible under M.R.E. 404(b) when: (1) it reasonably supports a finding
that the accused committed the prior acts; (2) it makes a fact of consequence
at the trial more or less probable; and (3) its probative value substantially
outweighs any prejudicial effect. United States v. Humpherys, 57
M.J. 83, 90 (C.A.A.F. 2002)(quoting United States v. Reynolds, 29
M.J. 105, 109 (C.M.A. 1989)).3

As to the first prong, the standard for satisfying
it is "quite low." United States v. Dorsey, 38 M.J. 244, 246-47
(C.M.A. 1993)(citing Huddleston, 485 U.S. 681). That is especially
true in child abuse death cases, which "present very unusual problems of
proof. The circumstances of these cases suggest an even wider discretion
than usual in admitting what is conceded to be extremely prejudicial evidence,
consisting of other acts of abuse[.]" United States v. Leight, 818
F.2d 1297, 1304 (7th Cir. 1987)(child abuse death case).

Thus, in United States v. Harris, 661
F.2d 138 (10th Cir. 1981), also a child abuse death case, the court found
evidence of healing bone and rib fractures was admissible, even though
the prior injuries were unrelated to the victim’s death, and even though
there was no direct evidence the appellant inflicted those injuries. There
was only inference from circumstantial evidence. In finding this evidence
admissible, the court quoted from United States v. Woods, 484 F.2d
127, 133 (4th Cir. 1973), as follows:

We think also that when the crime is one
of infanticide or child abuse, evidence of repeated incidents is especially
relevant because it may be the only evidence to prove the crime. A child
of the age of Paul [eight months] . . . is a helpless, defenseless unit
of human life. Such a child is too young, if he survives, to relate the
facts concerning the attempt on his life, and too young, if he does not
survive, to have exerted enough resistance that the marks of his cause
of death will survive him. Absent the fortuitous presence of an eyewitness,
infanticide or child abuse by suffocation would largely go unpunished.(Emphasis added.) See alsoUnited States
v. White, 23 M.J. 84 (C.M.A. 1986)(evidence of prior rib fractures
and bruises to body and scalp admissible in child abuse death case, even
though no direct evidence the appellant caused those injuries; only inference
from circumstantial evidence). Applying these principles to Appellant’s
case, I conclude all the evidence of Nicole’s prior injuries was admissible.

Nicole’s Burned Face

There is no doubt Appellant inflicted the burn
to Nicole‘s face, because he admitted it numerous times. Thus, the first
part of the three-part test for admissibility of this evidence is satisfied.
As for the second part -– whether the burn to her face made a fact of consequence
at the trial more or less probable -– the answer to that is unequivocally
yes.

One of the elements the Government had to prove
in this case was that Appellant’s act of suffocating Nicole was with the
specific intent to kill or inflict great bodily harm on her. Manual
for Courts-Martial, United States (2002 ed.) [hereinafter MCM],
Part IV, para. 43.b.(2)(d). However, direct evidence of subjective intent
many times is not available, leaving circumstantial evidence of that intent
as the only mode of proof. And frequently, that circumstantial evidence
is of prior, similar acts of the accused. SeeHumpherys,
57 M.J. at 91. Such prior acts help prove intent by lessening the possibility
that the subsequent act was accidental -– a common sense proposition the
Supreme Court has embraced but which a majority of this Court today rejects.

Thus, in McGuire, 502 U.S. 62, the defendant
was charged with murdering his infant daughter. To help prove its case,
the prosecution introduced evidence of prior injuries to the daughter to
prove "battered child syndrome." Specifically, the prior injuries were
rectal tears and rib fractures, and based on these prior injuries, two
experts testified the victim was a battered child. Id. at 65.

The defendant in McGuire was convicted
of the murder, and thereafter, he filed a petition for habeas corpus relief
in the district court. His petition was denied, but he appealed to the
Court of Appeals, which reversed and "ruled that the prior injury evidence
was erroneously admitted to establish battered child syndrome, because
no evidence linked McGuire to the prior injuries and no claim had been
made at trial that the baby died accidentally." Id. at 66. To the
contrary, McGuire generally denied any involvement in the child’s death,
and instead speculated that she fell off the couch, or someone else killed
her. Id. at 65.

At this point, I note the similarity between
the facts in Appellant’s case and those in McGuire. In both, there
was a general denial of wrongdoing at trial, countered with evidence of
prior injuries of the victim that experts testified indicated abuse, even
though the prior injuries were not linked by direct evidence to the accused.
I also note that regarding this issue, the result reached by this Court’s
majority, and its rationale, are identical to the result reached by the
Court of Appeals in McGuire, and its rationale (i.e., evidence of
the prior injuries was inadmissible because there was no proof the accused
caused the injuries, and there was only a general denial of wrongdoing
at trial, not a specific claim of accident).

Yet in McGuire, the Supreme Court made
clear that this result and rationale are incorrect. Such evidence of prior
injuries, it held, is admissible, despite an accused’s general denial
of wrongdoing rather than a specific claim of accident, and despite an
absence of direct evidence linking him to the prior injuries. In so
holding, the Court reasoned as follows:

Because the prosecution had charged McGuire
with second-degree murder, it was required to prove that Tori’s death was
caused by the defendant’s intentional act. Proof of Tori’s battered
child status helped to do just that; although not linked by any direct
evidence to McGuire, the evidence demonstrated that Tori’s death was
the result of an intentional act[.]

. . . [T]he Court of Appeals also relied on
the theory that, because no claim was made at trial that Tori died accidentally,
the battered child syndrome evidence was irrelevant and violative of due
process. This ruling ignores the fact that the prosecution must prove
all the elements of a criminal offense beyond a reasonable doubt. In
this second-degree murder case, for example, the prosecution was required
to demonstrate that the killing was intentional. By eliminating the
possibility of accident, the evidence regarding battered child syndrome
was clearly probative of that essential element . . . . The Court of
Appeals, however, ruled that the evidence should have been excluded because
McGuire did not raise the defense of accidental death at trial. But
the prosecution’s burden to prove every element of the crime is not relieved
by a defendant’s tactical decision not to contest an essential element
of the offense.

502 U.S. at 68-69 (citations omitted)(emphasis
added).

The same is true in Appellant’s case, and applying
the law and logic of McGuire, I conclude the evidence of Nicole’s
burned face satisfies the second part of the three-part test for admissibility
because it helped prove Nicole’s death was caused by Appellant’s intentional
act of suffocating her -- something the Government was required to prove
and could not be precluded from proving simply because the defense chose
generally to deny causing Nicole’s death rather than claim accident. See
alsoUnited States v. Robles-Ramos, 47 M.J. 474 (C.A.A.F. 1998)(prior
instances of spouse abuse admissible to prove charged abuse was not an
accident); White, 23 M.J. at 87 (prior rib and other injuries admissible
to prove intent and absence of accident in child abuse death case); United
States v. Boise, 916 F.2d 497, 501 (9th Cir. 1990)(prior abuse probative
of material issue of absence of accident); Leight, 818 F.2d at 1301,
1303 (same); State v. Norlin, 951 P.2d 1131, 1136-37 (Wash. 1998)(same).

That leaves only the third part of the test
for admissibility -– whether the probative value of evidence of Nicole’s
burned face substantially outweighed any prejudicial effect. In this child
abuse death case where there were no eyewitnesses and only circumstantial
evidence to prove Nicole’s death was not an accident, I conclude the probative
value of that evidence outweighed any prejudicial effect. SeeBoise,
916 F.2d at 502 (argument that judge abused discretion by admitting evidence
of prior abuse "lacks merit"); Leight, 818 F.2d at 1304 ("not an
abuse of discretion to conclude that the probative value of earlier acts
of child abuse outweighed the unfair prejudice of showing uncharged wrongs
– even of a reprehensible character"); Harris, 661 F.2d at 142 ("A
battered child is not a pretty picture. But in our view the evidence of
other injuries was highly probative in nature."); Norlin, 951 P.2d
at 1137 (probative value of such evidence "was great").

Thus, evidence of Nicole’s burned face satisfied
Supreme Court precedent, as well as this Court’s three-part test for admissibility,
and was properly admitted to help prove an essential element of the Government’s
case – that when Appellant suffocated Nicole, he did so intentionally and
not by accident. That said, the military judge did not abuse his discretion
by admitting that evidence. To hold otherwise not only ignores the prevailing
Supreme Court jurisprudence applied by state and other federal courts,
but also establishes a different and more difficult evidentiary standard
for the prosecution of child abuse cases in the military justice system.

Nonetheless, the majority does hold otherwise,
based on its conclusion that because McGuire is a habeas corpus
case, it "is not a valid precedent for deciding an issue involving Military
Rule of Evidence." __ M.J. at (37 n.3). Yet even if this conclusion
is correct, it significantly overstates the issue in Appellant’s case,
and in doing so "misses the legal point." United States v. Mitchell,
58 M.J. 446, 448 (C.A.A.F. 2003).

As previously stated, there is a three-part
test for admissibility under M.R.E. 404(b). The second part of that test
is that the evidence must make a fact of consequence at the trial more
or less probable. Reynolds, 29 M.J. at 109. In other words, the
evidence must be relevant under M.R.E. 401, the evidentiary rule cited
by Reynolds in support of this part of the test.4It
is with respect to this limited and basic question only that McGuire is
both instructive and precedential in Appellant’s case.

As the majority correctly notes, because McGuire
was a habeas corpus case, it was not concerned with "whether the California
courts correctly applied the [state] rules of evidence[.]" __ M.J. at (41
n.3). Rather, McGuire was concerned only with "whether the admission
of the evidence [of prior misconduct] violated McGuire’s federal constitutional
rights." 502 U.S. at 68. In holding that it did not violate his constitutional
rights, the Supreme Court concluded "that the prior injury evidence was
relevant to an issue in the case," specifically, intent. Id. at
70. In other words, the Court concluded that the prior act evidence
was "relevant" within the meaning of Federal Rule of Evidence 401. See
Fed.R.Evid. 1101(e) (Federal Rules of Evidence apply in habeas corpus cases).

That being the case, the evidence of Nicole’s
burned face was equally relevant under M.R.E. 401, because: (1) "[t]he
definition of ‘relevant evidence’ found within [M.R.E.] 401 is taken without
change from the Federal Rule," MCM, Analysis of the Military Rules
of Evidence at A22-33, and (2) "as the Military Rules of Evidence are largely
derived from the Federal Rules of Evidence, we look to the federal Courts
of Appeals for treatment of the issue[s]." United States v. Grant,
56 M.J. 410, 414 (C.A.A.F. 2002).

Thus, McGuire does not stand for the
broad proposition that evidence of Nicole’s burned face was admissible
under M.R.E. 404(b). What it stands for is the narrow proposition that
evidence of Nicole’s burned face was relevant in Appellant’s case under
M.R.E. 401, and therefore satisfied one of the three distinct legal tests
that all must be met before evidence is admissible under M.R.E. 404(b).
That is all it stands for, and it does so regardless of the fact it is
a habeas corpus case.

This is a legal reality the majority cannot
refute, so rather than confront it on the merits, they simply ignore and
obscure the issue with an overly broad and misleading conclusion that McGuire
does not apply to M.R.E. 404(b) issues as a whole. But it does apply, in
the limited way I just described, and the majority’s failure either to
acknowledge or refute that fact calls into question the viability of their
entire opinion.

Nicole’s Other Injuries

For the reasons just discussed, all of the
evidence of Nicole’s other injuries also satisfied the second and third
parts of this Court’s three-part test for admissibility, i.e., was more
probative than prejudicial of the material fact of an intentional killing.
The only question remaining is whether evidence of those injuries also
satisfied the first part of the test, i.e., reasonably supported a finding
that Appellant caused those other injuries.

As to Nicole’s cheek and chest bruises, the
answer is clearly yes, because Appellant admitted to the intake worker
that he caused them, and his wife testified that he caused them. As to
Nicole’s fractured ribs, broken leg, and scalp bruises, the answer is also
yes, because the standard is not whether direct evidence "establish[ed]
that Appellant inflicted" those injuries, as the majority seems to imply,
__ M.J. at (35) (emphasis added), but whether given all the circumstances
of this case, the evidence could "reasonably support" a finding by the
members that Appellant inflicted those injuries. Reynolds, 29 M.J.
at 109; Huddleston, 485 U.S. at 685 ("sufficient evidence to support
a finding by the jury that the defendant committed the similar act"). In
my view, the evidence easily supported that finding because it clearly
established Appellant "had both the inclination and the opportunity to
commit the crimes." Charley, 189 F.3d at 1271.

First, Appellant inflicted second and third
degree burns on Jasmine and Nicole, and his confessed reason for burning
Jasmine was "to see what she would do." Second, Appellant and his wife
were the primary caretakers of the children. Third, Dr. Stuemky testified
rib injuries like Nicole’s could only be caused by abuse. Fourth, Nicole
was only a few months old at the time of these injuries, and was therefore
immobile and unable to self-inflict them. Fifth, there was no suggestion
that Appellant’s wife inflicted these injuries. Sixth, there was no suggestion
anyone else inflicted them. And seventh, the sheer number of Nicole’s injuries
reduced the likelihood they were caused by others who periodically might
have watched her.

Given these facts, I conclude the members of
Appellant’s court-martial could reasonably have found that Appellant inflicted
Nicole’s rib, leg, and head injuries. SeeBoise, 916 F.2d
at 502 (evidence supported conclusion the appellant caused the child’s
prior rib injuries, where he and his wife were the primary caregivers,
and there was no suggestion she mistreated the child); Harris, 661
F.2d at 141 (facts and circumstances permitted jury to infer that defendant
caused prior injuries where "[a]ny suggestion that it was possibly the
mother who mistreated [the child] is only that[,] a suggestion"); Norlin,
951 P.2d at 1137 (evidence supported conclusion the appellant caused prior
rib injuries, where he and his wife were the primary caregivers, and wife
testified prior injuries occurred when child was alone with the appellant).

As a result, all the evidence of Nicole’s prior
injuries satisfied this Court’s three-part test for admissibility, and
the military judge did not abuse his discretion in admitting it. Moreover,
the military judge’s response to Dr. Stuemky’s improper testimony did much
to cure the problem created by that testimony.

The Military Judge’s Response

Immediately after Dr. Stuemky’s testimony contradicted
the military judge’s express instructions, trial defense counsel moved
for a mistrial, but the military judge denied the request. Instead, the
judge had Dr. Stuemky leave the courtroom and gave the members the following
detailed instructions to cure any prejudice to Appellant from Dr. Stuemky’s
improper testimony:

Members of the court, early on in this trial
and during the case on several occasions, I’ve told you that you have to
decide the facts in this case, and you have to make a determination as
to whether a crime occurred. You have to make a determination as to the
believability or credibility of witnesses. And you have to follow my instructions.
Earlier on when we did the voir dire portion of the trial, I told you in
my preliminary instructions – I told you that you were required to follow
the instructions that I gave you, and you all assured me that you could
do that.

I’m going to give you some instructions concerning
expert testimony. An expert – a person is allowed to testify as an expert
because his testimony may be helpful to you in coming to conclusions about
issues. The witness you’ve been hearing has been qualified as an expert
in a specific discipline because his knowledge, skill, experience, training
or education may assist you in understanding the evidence, or in determining
a fact in issue. But [t]he point is that you have to determine the fact
in issue. Do you understand that?

MEMBERS: [Affirmative responses.]

MJ: You are not required to accept the testimony
of an expert witness or give it any more or less weight than that of an
ordinary witness. But you should consider the expert’s experience and qualifications
in the specific area.

Expert witnesses are allowed to render opinions,
and those opinions are only allowed if they’re helpful to you, the fact
finder. But again, bear in mind that you have the ultimate determination
as to a conclusion about the issues in this case.

An expert witness cannot tell you that he thinks
a crime occurred, because that’s not helpful to you, because you have to
decide that. An expert witness cannot tell you that a witness is lying
or truthful, or he cannot even tell you that a crime occurred. Because
you have to decide that based on all the evidence, and only the evidence,
that’s been presented to you in the courtroom. Do you understand that?

MEMBERS: [Affirmative responses.]

MJ: To the extent that Dr. Stuemky opined that
he thought a crime occurred, and that a particular specific person committed
that crime, you cannot consider that, because that’s not helpful to you.
You have to make that decision. Do you understand that?

MEMBERS: [Affirmative responses.]

MJ: As I told you earlier this morning, there’s
nobody that can help you in that regard, because you have to make your
decision based on the evidence that’s presented to you here in court. Nobody
else has the unique situation of being present to hear all the evidence
in court. Do you understand what I’m telling you?

MEMBERS: [Affirmative responses.]

MJ: I’m telling you that you must disregard
any testimony about whether a crime occurred, or whether this soldier committed
a crime. Do you understand that?

MEMBERS: [Affirmative responses.]

MJ: And you can’t consider that for any reason
during your deliberations. Do you understand that?

MEMBERS: [Affirmative responses.]

MJ: I’ve gotten affirmative responses by every
member to this point. You can consider evidence that certain – as to an
opinion about whether injuries were consistent with SIDS or not consistent
with SIDS, or whether the injuries were consistent with a child-abuse type
death. But you cannot consider any testimony as to what this witness thought
as to who did it. Do you understand that?

MEMBERS: [Affirmative responses.]

Having instructed the members in this manner and
determined that they collectively understood and would follow them, the
judge then took the added step of polling the members individually, asking
each one if he or she understood and could follow the instructions. In
response, each member stated for the record that he or she understood and
would follow them.

Conclusion

In light of (1) these curative measures taken
by the military judge; (2) the strong expert testimony that SIDS could
not be the cause of Nicole’s death; (3) the strong expert testimony there
was no cause of death other than suffocation; (4) the fact that only Appellant
could have suffocated Nicole; (5) Appellant’s prior abuse of Nicole and
subsequent abuse of Jasmine; and (6) Appellant’s complete lack of credibility,
I conclude that the improper testimony in this case that Nicole’s death
was a homicide did not substantially influence the members’ findings of
guilty, and that as a result, the military judge did not err in refusing
to grant a mistrial. SeeCharley, 189 F.3d at 1272 ("In light
of the strength of the properly admitted testimony . . ., and the relatively
modest amount of erroneously admitted testimony, we cannot say that the
erroneously admitted portions of the testimony substantially affected the
trial’s outcome[.]"); United States v. Taylor, 53 M.J. 195, 198
(C.A.A.F. 2000)(mistrial is "drastic remedy" needed only to prevent "miscarriage
of justice"; curative instruction is "preferred"); Rule for Courts-Martial
915(a)(mistrial when "manifestly necessary in the interest of justice").

I would affirm the decision of the court below.

FOOTNOTES:

1 Throughout
this opinion, I speak only in terms of Dr. Stuemky’s improper testimony.
Nonetheless, to the extent others also testified improperly, I find that
harmless too, for the same reasons I find Dr. Stuemky’s improper testimony
harmless.

2
There is no question that CPT Tremaine was a person subject to the UCMJ.

3
This Court decided United States v. Reynolds, 29 M.J. 105 (C.M.A.
1989), after the Supreme Court decided
Huddleston v. United States,
485 U.S. 681 (1988). Interestingly,
Reynolds did not cite Huddleston,
even though the three-part test announced in Reynolds is identical
in all material respects to the three-part test announced in Huddleston
for admissibility of 404(b) evidence. Nonetheless, because the two tests
are the same; because
Huddleston involves Federal Rules of Evidence
401, 403, and 404(b), and Reynolds involves Military Rules of Evidence
401, 403, and 404(b); and because these Military Rules are "taken without
change from the Federal Rule[s]," Reynolds should not be applied
in a manner inconsistent with Huddleston. SeeManual for
Courts-Martial, United States (2002 ed.), Analysis of the Military
Rules of Evidence at A22-33 and 34.

4
Military Rule of Evidence 401 states: "‘Relevant evidence’ means evidence
having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than
it would be without the evidence."